The California Environmental Quality Act (CEQA) requires, among other things, 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. CEQA prohibits an action or proceeding from being brought in a court to challenge the approval of a project by a public agency unless the alleged grounds for noncompliance are presented to the public agency orally or in writing by a person during the public comment period provided by CEQA or before the close of the public hearing on the project before the issuance of the notice of determination.

This bill would require the alleged grounds for noncompliance with CEQA presented to the public agency in writing be presented at least 10 days before the public hearing on the project before the issuance of the notice of determination. The bill would prohibit the inclusion of written comments presented to the public agency after that time period in the record of proceedings and would prohibit those documents from serving as basis on which an action or proceeding may be brought.

Date of Hearing: March 27, 2023

ASSEMBLY COMMITTEE ON NATURAL RESOURCES

Luz Rivas, Chair

ABPCA Bill Id:AB 340 (

Author:Vince Fong) – As Introduced Ver:January 30, 2023

SUBJECT: California Environmental Quality Act: grounds for noncompliance

SUMMARY: Requires any written allegations of noncompliance with the California Environmental Quality Act (CEQA) to be presented to the public agency at least 10 days before the final public hearing on the project. Prohibits any later written comments from being included in the record the proceedings or serving as the basis for judicial challenge of the agency’s action.

EXISTING LAW:

1. CEQA 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). (Public Resources Code (PRC) § 21000, et seq)
2. Authorizes judicial review of CEQA actions taken by public agencies, following the agency's decision to carry out or approve the project, subject to statutes of limitations ranging from 30 to 180 days (PRC § 21167):
   1. 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 within 30 days of filing of the notice of determination (NOD);
      
   2. Challenges alleging improper determination that a project is exempt from CEQA must be filed within 35 days of filing of the notice of exemption, or 180 days if no notice has been filed and,
      
   3. Challenges alleging an agency has failed to determine whether a project has a significant effect on the environment must be filed within 180 days.
3. Prohibits an action from being brought on alleged grounds of noncompliance with CEQA unless the alleged grounds for noncompliance were presented to the public agency orally or in writing by any person during the public comment period or prior to the close of the public hearing on the project before issuance of the NOD. These requirements do not apply to the Attorney General, in cases where there was no public hearing or other opportunity for members of the public to raise objections orally or in writing before the approval of the project, or if the public agency failed to give the notice required by law. (PRC § 21177)

FISCAL EFFECT: Unknown

COMMENTS:

1. Background. In order to enforce compliance with CEQA, actions taken by public agencies can be challenged in superior court once the agency approves the project. CEQA appeals are subject to unusually short statutes of limitations. Under current law, CEQA lawsuits 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. The petitioner must request a hearing within 90 days of filing the petition and, generally, briefing must be completed within 90 days of the request for hearing. Courts are required to commence hearings on CEQA appeals within one year of filing, to the extent feasible.

CEQA establishes procedures for the preparation and certification of the administrative record (e.g., application materials, staff reports, transcripts or minutes of public proceedings, notices, written comments, and written correspondence prepared by or submitted to the public agency regarding the proposed project). Generally, the record is required to be prepared and certified within 60 days of the petitioner’s request.

CEQA requires the alleged grounds for noncompliance to be presented to the public agency, and the person challenging the decision to have objected to approval of the project, orally or in writing during the public comment period or before the close of the public hearing on the project. However, these requirements do not apply to the Attorney General, to any alleged grounds for noncompliance for which there was no public hearing or other opportunity for members of the public to raise those objections orally or in writing before the approval of the project, or if the public agency failed to give the notice required by law.

Exhaustion of administrative remedies is a prerequisite to challenging any project approval under CEQA. The basic premise is that a person or organization may not bring a legal challenge to an agency’s decision unless that person or organization has participated during the agency’s administrative review process. A petitioner must “exhaust” his or her administrative remedies by first raising arguments to the agency during its consideration of the project. By doing so, the agency has the opportunity to address the issue before its actions are subject to judicial review.

Exhaustion of administrative remedies requires that a person preparing written or oral comments on an environmental document must allege specific violations of CEQA procedures or substantive findings. General objections to the project are not sufficient to alert an agency to an objection based on CEQA.

1. Author’s statement:

California is facing a severe housing shortage and affordability crisis forcing families and businesses to greener grass across the country. The abuse during pending CEQA hearings stifles our response to these crises. AB 340 will prevent a project opponent from gaining standing to sue unless he or she presented the alleged CEQA issue during the public comment period for the project proposal’s hearing. By preventing late hits, CEQA abuses will be minimized while we tackle the mounting housing shortage.

1. Should written comments be cut off before the end of the agency’s deliberations? The CEQA Guidelines (§15207) provide “(i)f any public agency or person…fails to comment within a reasonable time as specified by the Lead Agency, it shall be assumed, without a request for a specific extension of time, that such agency or person has no comment to make. Although the Lead Agency need not respond to late comments, the Lead Agency may choose to respond to them.”

Although the CEQA Guidelines and judicial precedent indicate that a lead agency does not need to respond to a late comment in writing, the lead agency does need to exercise discretion because all comments – including late ones – become part of the project’s administrative record.

Sometimes interested parties to a project may submit comments late in the review process and perhaps voluminous amounts of content in their comment as a tactic to delay a project – this is referred to as “document dumping.” However, this may not always be the case – interested parties, who submit late comments, may raise genuine, significant issues that were not adequately addressed in the environmental review or provide important information that was not available earlier in the process.

To prevent “document dumping,” this bill proposes to cut off all written comments 10 days before the final public hearing on the project, regardless of the volume of the comments or whether they relate to existing or new issues. This may be fair in the case of a local development project, where the project has been adequately noticed, heard by the planning commission, the final EIR has been published, and there are no changes prior to the city council hearing and approving the project. However, there are many other cases where the 10-day deadline would not provide a fair opportunity for the public to comment on the project. For example:

• 1. The final EIR is not published until after the 10-day deadline.
  2. The final public hearing is the first public hearing on the project, and the agenda may not even be published until after the 10-day deadline.
  3. The agency makes changes to the project at the final public hearing, or within the preceding 10 days.

1. A more balanced precedent for addressing late comments. Beginning with SB 292 (Padilla), Chapter 353, Statutes of 2011, several project-specific CEQA streamlining bills have included the following language limiting the submission and consideration of written comments after the close of the public comment period on the draft EIR:

The lead agency need not consider written comments submitted after the close of the public comment period, unless those comments address any of the following:

(A) New issues raised in the response to comments by the lead agency.

(B) New information released by the public agency subsequent to the release of the draft environmental impact report, such as new information set forth or embodied in a staff report, proposed permit, proposed resolution, ordinance, or similar documents.

(C) Changes made to the project after the close of the public comment period.

(D) Proposed conditions for approval, mitigation measures, or proposed findings required by Section 21081 or a proposed reporting and monitoring program required by paragraph (1) of subdivision (a) of Section 21081.6, if the lead agency releases those documents subsequent to the release of the draft environmental impact report.

(E) New information that was not reasonably known and could not have been reasonably known during the public comment period.

It must be noted that each of these bills has related to only one, high-profile project, and included several other relevant conditions, including a requirement for the lead agency to prepare an EIR, hold workshops and hearings prior to the close of the comment period, and prepare the administrative record concurrently, in electronic form. While these conditions could be applied as an alternative for lead agencies wishing to do the groundwork to avoid late issues and comments, this approach may not be suitable in all CEQA cases, particularly where there is more limited public notice and review, such as when no EIR is prepared.

1. Double referral. This bill has been double referred to the Assembly Judiciary Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

California Apartment Association
California Building Industry Association
California Central Valley Flood Control Association
El Dorado Irrigation District
Valley Ag Water Coalition
Western Manufactured Housing Communities Association

Opposition

Livable California
State Building and Construction Trades Council of California

Analysis Prepared by: Lawrence Lingbloom / NAT. RES. /