THE SHIFTING LANDSCAPE OF CEQA LITIGATION

Michael A. Smith, Esq.

It has been an eventful year for the California Environmental Quality Act (CEQA), the landmark 1970 law which requires government agencies to study the environmental impacts of proposed projects and redress any significant effects.

CEQA’s critics have become increasingly vocal in recent years about the law’s shortcomings and the need for legislative reform. Many developers, business interests and public agencies complain that CEQA is abused by project opponents and creates long and costly project delays. A growing number of lawmakers now seem to agree with them, and state legislators have been busy drafting CEQA reform bills. More than 20 such bills have already been introduced this year.

Among the more notable proposed reforms is SB123, introduced by State Senate Majority Leader Ellen Corbett (D). Noting that environmental litigation is “often complex and fragmented” and frustrates progress, the bill seeks to establish a separate division within each of California’s 58 superior courts to handle all CEQA litigation (as well as other land use-related matters). However, given the courts’ declining budgets and scarce resources, this bill seems destined to fail.

A common theme among all these new reform bills is the need for a more streamlined procedure for CEQA litigation to help reduce the expense and delay that legal challenges present. Indeed, this same concern was the impetus behind a similar 2011 law, AB 900, which provided that challenges to certain large scale “green” developments that offered “cutting edge environmental benefits” could bypass the trial courts entirely and head directly to the state appellate courts. AB 900 served as the model for several of the bills now being considered, while others seek to simply expand the scope of projects receiving AB900’s benefits.

However, a recent decision in Alameda Superior Court in a case challenging AB900 cast some doubt on the future of these reform bills. The judge found that the “bypass” provision of AB900 was unconstitutional because it denied citizens their right to complete access to the courts. A written statement of decision elaborating on the court’s reasoning is expected in a few weeks, and an appeal is likely.

Whatever the effect of this recent decision and the reform bills now under consideration, it is clear that the landscape of environmental litigation is shifting under new and growing pressures. As laws governing California’s environmental litigation evolve and adapt, the parties, attorneys and legal strategies involved must evolve and adapt as well.

At Davis Law, we offer the experience and expertise necessary to help you navigate the shifting legal landscape of environmental litigation in California. Let us help you achieve success.

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