The California Environmental Quality Act requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of an environmental impact report 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. Existing law declares the policy of the state that a project to be carried out by a public agency be subject to the same level of review and consideration under the act as that required of private projects required to be approved by public agencies. The act authorizes specified entities to file and maintain with a court an action or proceeding to attack, review, set aside, void, or annul an act of a public agency on grounds of noncompliance with the requirements of the act.

The California Environmental Quality Act requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of an environmental impact report 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. Existing law declares the policy of the state that a project to be carried out by a public agency be subject to the same level of review and consideration under the act as that required of private projects required to be approved by public agencies.

This bill would make a technical, nonsubstantive change to those provisions.

Date of Hearing: April 18, 2016

ASSEMBLY COMMITTEE ON NATURAL RESOURCES

Das Williams, Chair

ABPCA Bill Id:AB 2026 (

Author:Hadley) – As Amended Ver:March 18, 2016

SUBJECT: California Environmental Quality Act: judicial challenge: identification of contributors

SUMMARY: Requires plaintiffs in California Environmental Quality Act (CEQA) lawsuits to identify every person or entity who contributed, or committed to contribute, $1,000 or more to support the lawsuit.

EXISTING LAW:

1. Requires lead agencies with the principal responsibility for carrying out or approving a proposed project to prepare a negative declaration, mitigated negative declaration, or environmental impact report (EIR) for this action, unless the project is exempt from CEQA (CEQA includes various statutory exemptions, as well as categorical exemptions in the CEQA guidelines).
2. Authorizes judicial review of CEQA actions taken by public agencies, following the agency's decision to carry out or approve the project. Challenges alleging improper determination that a project may have a significant effect on the environment, or alleging an EIR doesn't comply with CEQA, must be filed in the Superior Court within 30 days of filing of the notice of approval. The courts are required to give CEQA actions preference over all other civil actions.
3. Authorizes a trial court to order a party, the party’s attorney, or both to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.
   

THIS BILL:

1. Requires the plaintiff or petitioner in a CEQA lawsuit to identify every person or entity who made a monetary contribution of $1,000 or more, or committed to contribute $1,000 or more, for the preparation of the petition and subsequent action or proceeding.
2. Requires the plaintiff or petitioner to continue throughout the course of the proceeding to identify any person or entity that has made a single or multiple contributions or commitments, the sum of which is $1,000 or more, and that were intended to fund the action or proceeding.
3. Requires the above disclosures to also include the identity of any pecuniary or business interest that the person or entity has related to the proposed project.
4. Permits a court to withhold the public disclosure of a contributor if it finds that the public interest in keeping that information confidential clearly outweighs the public interest in disclosure, upon request of a plaintiff or petitioner.
5. Permits a court to take any action necessary to compel compliance with these disclosure requirements, up to and including dismissal of the action or proceeding.
6. Provides that an individual contributing funds to file a CEQA lawsuit in his or her individual capacity, and not as a representative for an organization or association, has the right to limit disclosure of his or her personal information to an in-camera review by the court.
7. Permit a court to use the information disclosed to determine whether the financial burden of private enforcement supports the award of attorneys’ fees.

FISCAL EFFECT: Non-fiscal

COMMENTS:

1. Background. CEQA provides a process for evaluating the environmental effects of applicable projects undertaken or approved by public agencies. If a project is not exempt from CEQA, an initial study is prepared to determine whether the project may have a significant effect on the environment. If the initial study shows that there would not be a significant effect on the environment, the lead agency must prepare a negative declaration. If the initial study shows that the project may have a significant effect on the environment, the lead agency must prepare an EIR.

Generally, an EIR must accurately describe the proposed project, identify and analyze each significant environmental impact expected to result from the proposed project, identify mitigation measures to reduce those impacts to the extent feasible, and evaluate a range of reasonable alternatives to the proposed project. If mitigation measures are required or incorporated into a project, the agency must adopt a reporting or monitoring program to ensure compliance with those measures.

CEQA actions taken by public agencies can be challenged in Superior Court once the agency approves or determines to carry out the project. CEQA appeals are subject to unusually short statutes of limitations. Under current law, court challenges of CEQA decisions generally must be filed within 30 to 35 days, depending on the type of decision. The courts are required to give CEQA actions preference over all other civil actions.

1. Author's statement:

CEQA was established to allow environmentally minded individuals and organizations to review the environmental impacts of potential projects and to work with all parties to reduce the negative effects on the environment those projects might create. Although well intentioned, over the past four years, only 32% of all CEQA cases were filed by individuals (19%) or environmental advocacy groups (13%). Instead, CEQA lawsuits can be filed anonymously with the true filer unknown to the judge, defending agency, or the public. Today, 45% of CEQA lawsuits are filed anonymously. Individuals and groups file anonymously for many reasons; to slow down a competitor’s project, to leverage for bargaining agreements, to maintain access to a ‘free’ commodity like water, wind or sun, or to stop a plan for non-environmental reasons.

According to KPBS San Diego, as of May 2015 one lawyer and his law firm had sued on behalf of more than 30 so called “charitable nonprofits”, almost all of which he and his family helped create, and all but two share the same mailing address as the law firm. This tactic is known as “greenmail.” California courts have already established a process by which parties that file amicus briefs identify their financial supporters. AB 2026 adopts that procedure without changes. Should the court find that the public interest in keeping this information confidential clearly outweighs the public interest in disclosure in any particular case, AB 2026 allows the plaintiffs to keep the records of their contributors sealed.

1. Amicus disclosure rules serve a different purpose. Amicus curiae are not the same as plaintiffs. Though the author cites the amicus disclosure rules as precedent in support of this bill, the primary purpose of those rules is to enable courts to ensure that the amicus process is not being used to circumvent limits on briefing by the parties (i.e., by covertly funding amicus briefs to support their position). And, unlike this bill, the amicus rules apply to both sides.

The amicus disclosure requirement [California Rules of Court 8.200(c)] was adopted in 2008 based on the recommendation of the Judicial Council Appellate Advisory Committee. The Committee's report states:

To help (the United States Supreme Court) ensure that the amicus process is not being used to circumvent limits on briefing by the parties and also to help the court better identify the source of amicus briefs, United States Supreme Court Rules, rule 37.6 provides that:

Except for briefs presented on behalf of amicus curiae listed in Rule 37.4 (i.e., the Solicitor General and certain other government entities) a brief filed under this Rule shall indicate whether counsel for a party authored the brief in whole or in part and whether such counsel or a party made a monetary contribution intended to fund the preparation or submission of the brief, and shall identify every person other than the amicus curiae, its members, or its counsel, who made such a monetary contribution. The disclosure shall be made in the first footnote on the first page of text.

Amending rules 8.200, 8.520, and 8.882 to require that applications to file an amicus brief in a California appellate court to provide this same information will similarly ensure that amicus process in the California courts is not being used to circumvent limits on briefing by the parties and will help the courts better identify the source of amicus briefs.

1. Bill seems inequitable by design. This bill seems inequitable for two reasons. First, it applies disclosure requirements only to plaintiffs and not to other parties. Second, the bill only applies to plaintiffs who have accepted monetary contributions, in effect exempting self-financed plaintiffs and targeting organizations and individuals who must raise funds to support their advocacy. Adding to this discrepancy, the bill specifically permits a self-financed individual plaintiff to shield his or her personal information from the public.
2. And unnecessary to address the purported problem. The courts have authority under current law to sanction parties who pursue claims in bad faith or for improper purposes. If the identity or motives of a plaintiff are in question, a court can not only compel the party to identify itself, but issue sanctions if the court finds that the party's actions or tactics are frivolous.
3. Double referral. This bill has been double-referred to the Assembly Judiciary Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

California Chamber of Commerce

Central Coast Forest Association

Civil Justice Association of California

Torrance Area Chamber of Commerce

Opposition

California League of Conservation Voters

Sierra Club California

State Building and Construction Trades Council

Analysis Prepared by: Lawrence Lingbloom / NAT. RES. / (916) 319-2092