When a proposed project in California, say a new condominium or a power plant, requires environmental review under the California Environmental Quality Act (CEQA), a project opponent can, effectively, block a project from moving forward even if it has the necessary approvals from the local government agency that has oversight. This is because the project opponent can appeal the local agency’s final CEQA determination to state court through a petition for writ of mandamus. Once the petition is filed, the project opponent, now the petitioner, can control, under current law, preparation of the administrative record that needs to be lodged with the court. A petitioner may also be able to leverage a monetary settlement which may not be related to mitigation measures meant to address the alleged environmental effects that the CEQA determination failed to adequately address.
Senate Bill (SB) 950 could take away from the petitioner both of these levers of control. There would also be faster case management procedures at the trial level.
Preparation of the Record
Currently, Public Resources Code section 21167.6 allows the petitioner to elect to prepare the administrative record. This allows the petitioner to use all of the time permitted to prepare the record, 60 days, and raise objections along the way which could pave the way for extending the record preparation period. Not until the record is prepared and certified are deadlines triggered for responsive pleadings and, following that, briefing on the merits.
SB 950 would amend section 21167.6 and allow the local agency, now the respondent, and/or the project proponent, now the real party in interest, to seize record preparation duties. So, even if the petitioner elects to prepare the record, the respondent can override the election under the proposed law.
Settlements Reported to the State Attorney General
SB 950 would add Public Resources Code section 21167.7.5 which would require a settling petitioner to submit a report to the State Attorney General if the settlement involves money paid directly to the petitioner or petitioner’s counsel other than reasonable attorney fees or costs. The purpose of this new provision is to “[d]iscourag[e] CEQA cases filed primarily for monetary gain by requiring confidential reporting to the Attorney General of settlements involving monetary payments, other than attorney’s fees[.]”
SB 950 would authorize sanctions against a petitioner for refusing to or failing to file the settlement report with the Attorney General. Also, “[i]f the Attorney General determines that a petitioner or a member of an organization that is a petitioner has filed multiple actions under this division resulting in primarily monetary settlements that do not further the purposes of this division, the Attorney General may pursue an action seeking appropriate remedies pursuant to” the state’s Unlawful Competition Laws.
Faster Case Management Schedule
SB 950 would add Public Resources Code section 21167.8.5 which would require the respondent local agency to file within 20 days after receiving the petition a request for a case management conference. If feasible the Court must set the conference no later than 30 days after the request has been filed. This new section would also require the parties to meet and confer 10 days before the conference, and file a separate or joint statement five days before the conference.
In addition, SB 950 amends Public Resources Code section 21167.8 to shorten the time to file a notice setting forth the time and place parties will discuss “procedural issues and timeliness associated with the litigation and the potential usefulness of settlement discussions, mediation, or arbitration in the case.” The time period was 45 days; it would be 30 days under the new law.