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| CEQA Experts Weigh In | December 2011 |
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Greetings!
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First Christian Church
Architect: Eliel Saarinen, 1942
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Last month we wrote about three bills recently passed by the California Legislature and signed into law by Governor Brown that created amendments to the California Environmental Quality Act (CEQA): Senate Bill 226, Senate Bill 292, and Assembly Bill 900. If you missed that issue, you can read the bill summaries here.
This month we feature interviews with two expert CEQA attorneys to get their views on the implications of the new legislation for current and future CEQA practice in California. We are fortunate to be able to share the thoughts of James G. Moose, co-author of the influential Guide to the California Environmental Quality Act, a respected legal treatise frequently cited by the appellate courts, and Maria Pracher, a CEQA expert who has been named a Northern California Super Lawyer multiple times by San Francisco Magazine, among other honors.
Highlights of our interviews with these luminaries are presented below. Short biographies of Mr. Moose and Ms. Pracher follow their interviews. This eAlert issue is longer than usual, but we think these interesting interviews warrant the additional space.
The photos in this issue were all shot in Columbus, Indiana, which has been ranked 6th in the nation for architectural innovation and design by the American Institute of Architects, and which Smithsonian magazine called "a veritable museum of modern architecture."
This is one of our periodic eAlerts that we send out to clients and colleagues to help keep you informed about planning and environmental issues. Please feel free to forward this to any colleagues who might be interested (they can subscribe using the link at the bottom of the email). Also feel free to make suggestions for future articles. And, as always, let us know if we can help move your project forward from concept to reality.
Sincerely,
Doug Herring, AICP
Archives: Our previous eAlerts are now archived at: DHA eAlerts Archive
Photography by Doug Herring |
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Central Middle School (Architect: Ralph Johnson, Perkins + Will, 2007)
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Interview with James Moose
On the general import of the legislation:
With both AB 900 and SB 292, litigants can skip over the trial court, and documents in the administrative record have to be put on-line in real-time. It's possible that these features might be a template that the Legislature itself would resort to in future CEQA bills. Because this template has been created, I could see how in the future people might see that as a good model to follow. Neither these two recent bills, though, nor future bills taking a similar approach would change the day-to-day practice of CEQA practitioners, as the new approach seems likely to be limited to very large and important projects.
In contrast, SB 226 could be significant in the future in terms of streamlining the CEQA process for in-fill projects. The current statutory exemptions for infill that have been on the books for a long time are very narrowly tailored to apply to a fairly small universe of projects, and in talking to people around the State over the last several years, I've heard that hardly any projects ever qualify for these exemptions. So I think SB 226, by taking a broader definition of infill, and then creating a process whereby OPR and the Natural Resources Agency are going to come up with standards that have to be satisfied, would potentially provide meaningful streamlining to a larger group of infill projects than currently gets any streamlining.
On the claim by critics that SB 292 and AB 900 circumvent CEQA:
I don't think so. I've heard some of my colleagues from what I call the Petitioner's Bar-the people who represent environmental groups, people who bring CEQA litigation-complain a lot about the bills, and some of these folks don't like the fact that there's no trial court phase in litigation under these bills. But that doesn't bother me at all because under CEQA case law the Court of Appeal is not at all deferential to what the trial court does. So the trial court phase is really just a dress rehearsal for the Court of Appeal in a lot of cases, just as in a lot of situations a
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Cummins World Headquarters, 1983 Architect: Kevin Roche, Roche Dinkeloo & Assoc. |
planning commission proceeding is a dress rehearsal for a city council meeting. So basically, by skipping over the trial court, you save about a year or a year and a half, and you get very quickly to the part of the judicial process that really matters. To me, no one will be denied their day in court under the two bills; petitioners will just be denied access to a lower tier of the court system that really in the long run doesn't produce decisions that matter that much. One of the burdens of the new legislation: I think the challenge created by these bills [SB 292 and AB 900] is that keeping the administrative record constantly updated on almost a real-time basis will be a lot of work for somebody, and probably for agency staff, who aren't used to doing having to do that. So that new obligation will represent an increase in workload for people. It has been my experience that, even though agencies are motivated to try and do the best job they can, they are not constantly organizing their files in the categories required by the CEQA statute that defines the administrative record. So once they're sued, even though they have all those files, there's a big task in organizing them by category and indexing them; this process can take two, three, four months, or more. So often the litigation doesn't really get started in earnest for a few, or even several, months after the filing of the case. What these bills require is that this organization actually occur during the administrative process, and that as documents get generated or even sent to the agency or sent out of the agency, they get posted online. The official administrative record has to be generated very quickly after the project is approved, and I think  |
Fire Station No. 1 Architect: Paris-Bingham,
1990 renovation |
that obligation alone, in addition to the online posting requirement, assumes that there are people during the administrative process busily organizing documents to make sure everything in the record will be ready to go at the time of project approval. These requirements will increase the workload of the lead agencies, and they may or may not be ready for these new duties. What could happen is that the proponents of projects that are subject to this process will have to fork out more money up front to pay for more staff time. And of course, they're also going to pay for this abbreviated appellate court process because there's a provision for Special Masters to be appointed at the expense of project applicants. I think the economic calculation that's gone into all of this is that, yes, this will be a costly process for applicants, but they'll be presumably be saving money due to reduced delays by not having to go through the trial court. So they'll save whatever their carrying costs for the year or year and a half that would have been spent in the trial court would have been, not to mention the cost of paying lawyers for their work in the trial court. But the cost of going directly to the Court of Appeal is that the up-front costs for staff time for record preparation and Court of Appeal special masters are going to be higher. Overall, applicants should save money, however. The people who supported this bill must have assumed that that they will be better off with this process than without it, despite these increased initial costs. |
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James Moose Biography
James Moose is a senior partner with the law firm Remy Thomas Moose & Manley  LLP. His practice focuses on land use and environmental matters, with an emphasis on issues arising under the California Environmental Quality Act (CEQA), the State Planning and Zoning Law, the National Environmental Policy Act (NEPA), the Endangered Species Act, the California Endangered Species Act, and other relevant land use and environmental statutes. He represents public agencies, project proponents, consulting firms, non-profit organizations, and individuals. With over 26 years of litigation experience in state and federal environmental cases, Mr. Moose has been involved in litigation resulting in numerous significant CEQA precedents in the Courts of Appeal and California Supreme Court.
Along with his partners, Mr. Moose is co-author of Guide to the California Environmental Quality Act, a respected legal treatise frequently cited by the appellate courts. He has co-taught annual CEQA Update and other CEQA courses through the University of California at Davis Extension Program since 1989. He has also taught CEQA courses or participated in the teaching of courses put on by CLE International, Lorman International, and the California Continuing Education of the Bar program, and has spoken about CEQA at the annual State Bar Environmental Law Conference at Yosemite.
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Central Middle School (Architect: Ralph Johnson, Perkins + Will, 2007)
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Interview with Maria Pracher
On the general import of the legislation:
I have an overall sense that there is a lot of frustration about the delays and uncertainties in the CEQA process, and these bills reflect that concern. All three of these bills focus on reducing, to some extent, the significant delays and uncertainties in the CEQA administrative and judicial processes. Pressure for these types of reforms will continue because of the extraordinarily long time that it can take to prepare the CEQA documentation, obtain project approval, and, often, then go through the litigation process.
On the claim by critics that SB 292 circumvents CEQA:
I don't see anything in SB 292 that circumvents CEQA; to the contrary, the legislation requires a full environmental impact report for this project and there are some very specific additional procedural and mitigation requirements that I think are in line with the requirements of CEQA.
From my perspective, the provisions in this legislation for expediting the judicial review process by having the petition for judicial review filed in the Court of Appeal rather than in the superior court do not erode CEQA's environmental review requirements. It is merely a means to have the inevitable litigation resolved expeditiously.
On applying the provisions of the legislation more broadly to CEQA:
SB 292 and AB 900 are limited because the former only applies to one project and the latter only applies to very large projects, for a limited time. I don't see these bills having a broad application. In the future, others might use some aspects of these bills in proposed legislation for other special projects or types of projects.
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St. Peter's Lutheran Church Architect: Gunnar Birkerts, 1988 |
Certainly people are going to look for ways to broaden some of the mechanisms in all three of these bills and apply them in other situations. However, I think there is a limited potential to apply the particular mechanism of bypassing the superior court and going straight to the Court of Appeal to a broad class of projects because it would overwhelm the Courts of Appeal, given the significant number of CEQA lawsuits that are filed every year.
On specific provisions of SB 292:
Expediting judicial review is a very significant provision. The provision for non-binding mediation to try to resolve issues quickly is also a significant provision in this legislation.
The attempt to limit the requirement for the agency to consider and respond to comments after the public comment period closes is a significant provision, although the legislation provides several exceptions, so I'm not sure it will be a dramatic change from what occurs now, but I think it's interesting that the issue of late comments is dealt with here.
I think the issue of dealing with comments on an EIR after the close of the public comment period and particularly comments submitted very late in the process, often the day of the final hearing on a project, will continue to garner attention and we could see future proposed legislation on this issue.
I think the requirement to put project documents and comments online is something that could work its way into a general CEQA provision, and I think it's a good idea. It will help speed up preparation of the administrative record.
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Central Middle School (Architect: Ralph Johnson, Perkins + Will, 2007)
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Maria Pracher Bio
Maria Pracher is a partner at the law firm Sheppard, Mullin, Richter & Hampton LLP, working in the Real Estate, Land Use and Environmental Practice Group in the firm's San Francisco office. Ms. Pracher has over 28 years of land use experience counseling clients undertaking complex development and planning projects in California. She has represented clients in preparing land use plans, multi-phased development plans, large residential and commercial projects, mixed use projects, hotels, oil developments, coastal resorts, landfill projects, and redevelopment projects. Her practice involves providing legal and strategic advice and managing the local, regional, and state regulatory approval process for large projects, including leading the technical consultant team and negotiating with the regulators and other stakeholder groups. She has extensive experience in structuring a broad range of complex environmental review documents under the California Environmental Quality Act. Additionally, she has represented applicants for coastal development permits and local coastal programs under the California Coastal Act, including The Irvine Company and the Koll Company.
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Who Is Douglas Herring & Associates?
Douglas Herring & Associates (DHA) works with public agencies, developers, and other businesses in California to expertly obtain the environmental and planning approvals needed to move projects from the conceptual stage to physical, benefit-generating reality in an efficient and cost-effective manner. Since 1997, DHA has helped dozens of California cities and counties and scores of other businesses and organizations save money while obtaining high-quality planning and legally defensible environmental analysis services necessary to get their projects expeditiously approved and built. Learn more on our website: Douglas Herring & Associates.
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