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AB-3279 California Environmental Quality Act: administrative and judicial procedures.(2019-2020)

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Date Published: 07/27/2020 09:00 PM
AB3279:v96#DOCUMENT

Amended  IN  Senate  July 27, 2020
Amended  IN  Senate  July 01, 2020
Amended  IN  Assembly  June 04, 2020

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 3279

Introduced by Assembly Member Friedman

February 21, 2020

An act to amend Sections 21167, 21167.1, 21167.4, 21167.6, 21167.8, and 21168.9 and 21167.8 of, and to repeal Sections 21168.6.5, 21168.6.6, 21170, and 21171 of, the Public Resources Code, relating to environmental quality.


LEGISLATIVE COUNSEL'S DIGEST


AB 3279, as amended, Friedman. California Environmental Quality Act: administrative and judicial procedures.
(1) 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.
Among other changes, this bill would repeal certain obsolete and duplicative provisions from CEQA and make nonsubstantive changes to certain other provisions.

(2)CEQA requires that all courts in which specified CEQA actions or proceedings are pending give those actions or proceedings preference over all other civil actions, including regulating the briefing schedule so that, to the extent feasible, a court commences hearings on an appeal within one year of the date of the filing of the appeal.

This bill would instead require that a court, to the extent feasible, commence hearings on an appeal within 270 days of the date of the filing of the appeal.

(3)CEQA requires in any action or proceeding alleging noncompliance with its provisions that the petitioner request a hearing within 90 days from the date of filing the petition, or the action or proceeding will be subject to dismissal, as specified. CEQA also requires that upon the filing of the request by the petitioner for a hearing and upon application by any party that the court establish a briefing schedule and a hearing date so that briefing is generally completed within 90 days from the date that the request for a hearing is filed, with certain exceptions.

This bill would reduce the general period in which briefing should be completed from 90 to 60 days from the date that the request for a hearing is filed.

(4)

(2) CEQA provides that in certain specified actions or proceedings, the plaintiff or petitioner may elect to prepare the record of proceedings, subject to certification of its accuracy by the public agency.
This bill would require the public agency, to the extent feasible, to prepare the record of proceedings concurrently with the administrative process, as specified. If the record of proceedings is not prepared concurrently with the administrative process, the bill would authorize the public agency to deny the request of the plaintiff or petitioner to prepare the record of proceedings, as provided, in which case the bill would require the public agency or the real party in interest to bear the costs of preparation and certification of the record of proceedings and would prohibit the recovery of those costs from the plaintiff or petitioner. If the record of proceedings is not prepared concurrently with the administrative process, the The bill would require the court to schedule a case management conference within 30 days of the filing of an action to review the scope, timing, and cost of the record of proceedings.

(5)

(3) CEQA establishes specified administrative and judicial review procedures for the administrative and judicial review of the EIR and approvals granted for a project related to the development of a specified football stadium and the modernization of the downtown convention center in the City of Los Angeles and for a project related to an entertainment and sports center in the City of Sacramento. CEQA requires the lead agency and applicant to implement specified measures, as a condition of approval of those projects.
This bill would repeal those provisions.

(6)CEQA requires a court to make specified remedial orders if it finds that any determination, finding, or decision of a public agency has been made without compliance with CEQA.

This bill would authorize a court to issue an interlocutory remand order if the court finds both that the order would promote judicial efficiency and expedition, and the public agency’s reconsideration on remand comports with due process and is not likely to result in a post hoc rationalization of the public agency’s actions. The bill would specify that these provisions do not prevent a court from entering a final judgment, affect the right of the parties to appeal that judgment, or affect the appropriate determination of attorney’s fees pursuant to a specified statute.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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


SECTION 1.

 Section 21167 of the Public Resources Code is amended to read:

21167.
 An action or proceeding to attack, review, set aside, void, or annul the following acts or decisions of a public agency on the grounds of noncompliance with this division shall be commenced as follows:
(a) An action or proceeding alleging that a public agency is carrying out or has approved a project that may have a significant effect on the environment without having determined whether the project may have a significant effect on the environment shall be commenced within 180 days from the date of the public agency’s decision to carry out or approve the project, or, if a project is undertaken without a formal decision by the public agency, within 180 days from the date of commencement of the project.
(b) An action or proceeding alleging that a public agency has improperly determined whether a project may have a significant effect on the environment shall be commenced within 30 days from the date of the filing of the notice required by subdivision (a) of Section 21108 or subdivision (a) of Section 21152.
(c) An action or proceeding alleging that an environmental impact report does not comply with this division shall be commenced within 30 days from the date of the filing of the notice required by subdivision (a) of Section 21108 or subdivision (a) of Section 21152 by the lead agency.
(d) An action or proceeding alleging that a public agency has improperly determined that a project is not subject to this division pursuant to subdivision (b) of Section 21080 shall be commenced within 35 days from the date of the filing by the public agency, or person specified in subdivision (b) or (c) of Section 21065, of the notice authorized by subdivision (b) of Section 21108 or subdivision (b) of Section 21152. If the notice has not been filed, the action or proceeding shall be commenced within 180 days from the date of the public agency’s decision to carry out or approve the project, or, if a project is undertaken without a formal decision by the public agency, within 180 days from the date of commencement of the project.
(e) An action or proceeding alleging that another act or omission of a public agency does not comply with this division shall be commenced within 30 days from the date of the filing of the notice required by subdivision (a) of Section 21108 or subdivision (a) of Section 21152.
(f) If a person has made a written request to the public agency for a copy of the notice specified in Section 21108 or 21152 before the date on which the agency approves or determines to carry out the project, then not later than five days from the date of the agency’s action, the public agency shall deposit a written copy of the notice addressed to that person in the United States mail, first class postage prepaid. The date upon which this notice is mailed shall not affect the time periods specified in subdivisions (b), (c), (d), and (e).

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 270 days 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 in the lower courts, the superior courts in all counties with a population of more than 200,000 shall designate one or more judges to develop expertise in this division 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 Sections 21167, 21168, and 21168.5.

(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.

SEC. 3.Section 21167.4 of the Public Resources Code is amended to read:
21167.4.

(a)In any action or proceeding alleging noncompliance with this division, the petitioner shall request a hearing within 90 days from the date of filing the petition or shall be subject to dismissal on the court’s own motion or on the motion of any party interested in the action or proceeding.

(b)The petitioner shall serve a notice of the request for a hearing on all parties at the time that the petitioner files the request for a hearing.

(c)Upon the filing of a request by the petitioner for a hearing and upon application by any party, the court shall establish a briefing schedule and a hearing date. In the absence of good cause, briefing shall be completed within 60 days from the date that the request for a hearing is filed, and the hearing, to the extent feasible, shall be held within 30 days thereafter. Good cause may include, but shall not be limited to, the conduct of discovery, determination of the completeness of the record of proceedings, the complexity of the issues, and the length of the record of proceedings and the timeliness of its production. The parties may stipulate to a briefing schedule or hearing date that differs from the schedule set forth in this subdivision if the stipulation is approved by the court.

SEC. 4.SEC. 2.

 Section 21167.6 of the Public Resources Code is amended to read:

21167.6.
 Notwithstanding any other law, in all actions or proceedings brought pursuant to Section 21167, except as provided in Section 21167.6.2 or those involving the Public Utilities Commission, all of the following shall apply:
(a) At the time that the action or proceeding is filed, the plaintiff or petitioner shall file a request that the respondent public agency prepare the record of proceedings relating to the subject of the action or proceeding. The request, together with the complaint or petition, shall be served personally upon the public agency not later than 10 business days from the date that the action or proceeding was filed.
(b) (1) (A) The public agency shall prepare and certify the record of proceedings not later than 60 days from the date that the request specified in subdivision (a) was served upon the public agency. To the extent feasible, the public agency shall prepare and certify the record of proceedings concurrently with the administrative process in a manner consistent with subparagraphs (B) to (G), inclusive, of paragraph (1) of subdivision (a) of Section 21167.6.2. Upon certification, the public agency shall lodge an electronic copy of the record of proceedings with the court and shall serve on the parties notice that the record of proceedings has been certified and lodged with the court. The parties shall pay any reasonable costs or fees imposed for the preparation of the record of proceedings in conformance with any law or rule of court.
(B) If the record of proceedings is not prepared concurrently with the administrative process, the The court shall schedule a case management conference within 30 days of the filing of the complaint or petition pursuant to this division to review the scope, timing, and cost of the record of proceedings. The parties may stipulate to a partial record of proceedings that does not contain all the documents listed in subdivision (e) if approved by the court.
(2) If the record of proceedings is not prepared concurrently with the administrative process, the The plaintiff or petitioner may elect to prepare the record of proceedings by providing a notice of the election to the public agency, or the parties may agree to an alternative method of preparation of the record of proceedings, subject to certification of its accuracy by the public agency, within the 60-day time limit specified in this subdivision.
(3) Notwithstanding paragraph (2), the public agency, within five business days of the receipt of the notice specified in paragraph (2), may deny the request of the plaintiff or petitioner to prepare the record of proceedings, in which case the public agency or the real party in interest shall bear the costs of preparation and certification of the record of proceedings, and those costs shall not be recoverable from the plaintiff or petitioner.
(c) The time limit established by subdivision (b) may be extended only upon the stipulation of all parties who have been properly served in the action or proceeding or upon order of the court. Extensions shall be liberally granted by the court when the size of the record of proceedings renders infeasible compliance with that time limit. There is no limit on the number of extensions that may be granted by the court, but no single extension shall exceed 60 days unless the court determines that a longer extension is in the public interest.
(d) If the public agency fails to prepare and certify the record of proceedings within the time limit established in paragraph (1) of subdivision (b), or any continuances of that time limit, the plaintiff or petitioner may move for sanctions, and the court may, upon that motion, grant appropriate sanctions.
(e) The record of proceedings shall include, but is not limited to, all of the following items:
(1) All project application materials.
(2) All staff reports and related documents prepared by the respondent public agency with respect to its compliance with the substantive and procedural requirements of this division and with respect to the action on the project.
(3) All staff reports and related documents prepared by the respondent public agency and written testimony or documents submitted by any person relevant to any findings or statement of overriding considerations adopted by the respondent agency pursuant to this division.
(4) Any transcript or minutes of the proceedings at which the decisionmaking body of the respondent public agency heard testimony on, or considered any environmental document on, the project, and any transcript or minutes of proceedings before any advisory body to the respondent public agency that were presented to the decisionmaking body before action on the environmental documents or on the project.
(5) All notices issued by the respondent public agency to comply with this division or with any other law governing the processing and approval of the project.
(6) All written comments received in response to, or in connection with, environmental documents prepared for the project, including responses to the notice of preparation.
(7) All written evidence or correspondence submitted to, or transferred from, the respondent public agency with respect to compliance with this division or with respect to the project.
(8) Any proposed decisions or findings submitted to the decisionmaking body of the respondent public agency by its staff, or the project proponent, project opponents, or other persons.
(9) The documentation of the final public agency decision, including the final environmental impact report, mitigated negative declaration, or negative declaration, and all documents, in addition to those referenced in paragraph (3), cited or relied on in the findings or in a statement of overriding considerations adopted pursuant to this division.
(10) Any other written materials relevant to the respondent public agency’s compliance with this division or to its decision on the merits of the project, including the initial study, any drafts of any environmental document, or portions thereof, that have been released for public review, and copies of studies or other documents relied upon in any environmental document prepared for the project and either made available to the public during the public review period or included in the respondent public agency’s files on the project, and all internal agency communications, including staff notes and memoranda related to the project or to compliance with this division.
(11) The full written record before any inferior administrative decisionmaking body whose decision was appealed to a superior administrative decisionmaking body before the filing of litigation.
(f) In preparing the record of proceedings, the party preparing the record of proceedings shall strive to do so at reasonable cost in light of the scope of the record of proceedings.
(g) The clerk of the superior court shall prepare and certify the clerk’s transcript on appeal not later than 60 days from the date that the notice designating the papers or records to be included in the clerk’s transcript was filed with the superior court, if the party or parties pay any costs or fees for the preparation of the clerk’s transcript imposed in conformance with any law or rules of court. Nothing in this subdivision precludes an election to proceed by appendix, as provided in Rule 8.124 of the California Rules of Court.
(h) Extensions of the period for the filing of any brief on appeal may be allowed only by stipulation of the parties or by order of the court for good cause shown. Extensions for the filing of a brief on appeal shall be limited to one 30-day extension for the preparation of an opening brief and one 30-day extension for the preparation of a responding brief, except that the court may grant a longer extension or additional extensions if it determines that there is a substantial likelihood of settlement that would avoid the necessity of completing the appeal.
(i) At the completion of the filing of briefs on appeal, the appellant shall notify the court of the completion of the filing of briefs, whereupon the clerk of the reviewing court shall set the appeal for hearing on the first available calendar date.

SEC. 5.SEC. 3.

 Section 21167.8 of the Public Resources Code 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 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 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 superior court. If the petition or complaint is later heard on its merits, the judge hearing the matter shall not be the same judge conducting the settlement conference, except in counties that have only one judge of the superior court.
(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 that 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.

SEC. 6.SEC. 4.

 Section 21168.6.5 of the Public Resources Code is repealed.

SEC. 7.SEC. 5.

 Section 21168.6.6 of the Public Resources Code is repealed.
SEC. 8.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)Any 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 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 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.

(c)(1)A court may issue an interlocutory remand order if the court finds both of the following:

(A)The order would promote judicial efficiency and expedition.

(B)The public agency’s reconsideration on remand comports with due process and is not likely to result in a post hoc rationalization of the public agency’s actions.

(2)This subdivision shall not prevent a court from entering a final judgment, affect the right of parties to appeal that judgment, or affect the appropriate determination of attorney’s fees pursuant to Section 1021.5 of the Code of Civil Procedure.

(d)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. 9.SEC. 6.

 Section 21170 of the Public Resources Code is repealed.

SEC. 10.SEC. 7.

 Section 21171 of the Public Resources Code is repealed.