Governor Schwarzenegger Signs Into Law Two Bills Amending CEQA

On September 30, 2010, Governor Schwarzenegger signed into law AB 231 and SB 1456, which provide moderate amendments to the California Environmental Quality Act’s provisions relating to tiering, mediation, litigation, and exhaustion of administrative remedies. The amendments will remain in effect until January 1, 2016.

Both bills amend the process by which an agency may tier environmental review for a later project from an EIR prepared and certified for an earlier program, plan, policy or ordinance. Specifically, AB 231 authorizes a lead agency to incorporate by reference the statement of overriding considerations from a previous project if the impacts from the later project are not greater than those identified in the previous EIR, all applicable mitigation measures identified in the prior EIR are incorporated into the later project, and the prior EIR was certified within three years of the approval of the later project. SB 1456 allows that if a lead agency determines that a cumulative effect has been adequately addressed in an earlier EIR, it need not be examined in a later EIR provided that the later project’s incremental contribution to the cumulative effect is not cumulatively considerable.

SB 1456 also adds provisions to expedite CEQA litigation and to promote mediation and settlement. First, the bill provides that if a CEQA case is in mediation, that case’s litigation deadlines are not tolled and that the mediation proceeding is intended to occur concurrently with the litigation. Second, the amendments allow that within five days after a lead agency files a Notice of Determination, a petitioner may file a notice with the lead agency requesting mediation. The lead agency may respond within five days to the notice. If the lead agency does not respond, the request is deemed denied. If the parties agree to mediation, the statute of limitations for filing the CEQA suit is tolled. Lastly, the amendments allow the Attorney General to file a motion with the court seeking an expedited schedule for the resolution of a CEQA case on the ground that it would be in the public interest to do so.

In addition to promoting expedited litigation in a CEQA case, SB 1456 authorizes sanctions for frivolous CEQA claims. In particular, the amendments provide that at any time after a petition has been filed, but at least 30 days before the hearing on the merits, a party may file a motion for sanctions based on a frivolous claim brought in the course of a CEQA action. “Frivolous claim” is defined as “totally and completely without merit” If the court determines a claim is frivolous, it may impose sanctions on the attorneys, law firms, or parties responsible for the frivolous claim of up to $10,000.

Finally, SB 1456 amends the requirement that a party must exhaust its administrative remedies before it may bring a CEQA claim in court. The bill provides that any organization formed after the approval of a project may bring a claim against a lead agency only if CEQA’s ordinary exhaustion requirements are satisfied and that the grounds for noncompliance were presented directly by a member of the organization or by a member agreeing with or supporting the comments of another person.