March 11, 2010
Pursuant to Elections Code Section 9005, we have
reviewed a proposed statutory initiative relating to changes to the
California Environmental Quality Act (CEQA) (A.G. File No. 10‑0008).
The CEQA. The CEQA was enacted in
1970 in order to ensure that state and local agencies consider the
environmental impact of their discretionary decisions when approving a
public or private project. Under CEQA, a public agency must take into
account the environmental impact of its decisions, and generally are
required to provide mitigation for any significant unavoidable harm. The
description of significant harm and the mitigation proposed is contained
in a document called an environmental impact report (EIR). The public
agency decision maker that is required to comply with CEQA is referred
to as the "lead agency."
The EIRs Are Prepared by the Lead Agency
Through a Public Process. An EIR is prepared through a public
consultation process and may involve the review of multiple state
environmental agencies. Once the preparation of an EIR is complete, the
lead agency certifies the EIR—meaning that it becomes the official
record of the project description and environmental review as well as
the required mitigation measures. Once the lead agency certifies an EIR,
it can be challenged in the courts based on such issues as whether the
document provided adequate measures to mitigate negative effects of the
project on the environment, or whether the EIR considered appropriate
alternatives to the project that would reduce its environmental harm.
Challenges to EIRs. Under current
law, individuals, organizations, or other public agencies can challenge
a certified EIR only by initiating litigation in the court system. That
is, other than the courts, no state government agency has the day-to-day
administrative responsibility and authority to enforce compliance with
CEQA. In general, to be granted the legal standing to challenge an EIR,
the individual, organization, or agency making the challenge must have
participated in the public process regarding the development of that EIR.
The one exception to this general requirement applies to the state
Attorney General, who is authorized to act in the public interest in
challenging EIRs without having participated in the public process
leading to the certification of the EIR. Generally, the Attorney General
files only a few such cases each year.
Attorney General's Role in CEQA Matters.
The Attorney General also represents state agencies, as defense
counsel, in cases where that state agency, acting as a lead agency in
the CEQA process, certified an EIR that is being challenged in
litigation. The Attorney General also provides legal advice to state and
local agencies during the development of EIRs. Funding for the Attorney
General's work on CEQA-related cases comes from the state's General Fund
and other state special funds.
Number of Cases Related to EIR Challenges.
The estimated number of CEQA-related cases filed each year in the
state's court system is around 250, of which an estimated 150 relate to
EIRs. This includes both those cases filed by participants in the EIR
process and those filed by the Attorney General.
Attorney General Given Sole Authority to
Instigate a Legal Challenge of a Certified EIR. This measure
would give the Attorney General the exclusive right to challenge the
validity of a certified EIR through the courts. No other person, state
or local agency, or other organization would be able to legally
challenge the EIR. The measure would apply prospectively—that is, the
restriction on challenges would only apply to EIRs certified after the
effective date of the measure.
The CEQA Litigation Workload for the
Attorney General. As discussed above, the Attorney General
currently has two roles under CEQA—(1) representing state agencies
challenged under CEQA and (2) challenging EIRs when he/she determines it
is in the public interest to do so.
This measure could increase the CEQA litigation
workload of the Department of Justice (DOJ), which is administered by
the Attorney General, as the Attorney General would now be the sole
entity that could pursue these cases on behalf of the public if the
certification of an EIR was at issue. However, the amount of this
additional workload is uncertain, because the determination of which
cases to pursue, and thus the number of cases pursued, would be left
solely to the discretion of the Attorney General.
This additional workload for DOJ would probably
be partially offset to the unknown extent that this measure prompts the
Attorney General to withdraw from providing legal defense of state
agencies involved in CEQA litigation. This is because the Attorney
General could not both pursue CEQA litigation against state agencies and
act as defense counsel for those state agencies in such litigation.
The net fiscal impact of the measure on DOJ's
workload is uncertain, but is unlikely to result in additional state
costs of more than the low millions of dollars annually.
State Court Workload and Revenues.
The measure could decrease the number of CEQA-related lawsuits in state
courts, to the extent that fewer cases are filed due to the measure's
limitation on who can instigate CEQA litigation. This decrease in
lawsuits could reduce the overall workload in state courts. This would
not necessarily result in a corresponding reduction in state court
costs, however, to the extent that the courts redirected court resources
to address backlogs of other civil or criminal cases. A decrease in the
filing of CEQA cases would also reduce the revenues from court filing
fees. The net fiscal effect of the loss of these revenues and the
reduction in court operating costs is unknown, but is unlikely to be
State and Local Agency CEQA Litigation
Defense Costs. To the extent that this measure reduces the
number of challenges to EIRs, state and local agencies involved in
certifying EIRs would see a decrease in their litigation-related costs.
These savings to state agencies would be offset to the unknown extent
that state agencies were required to retain more expensive outside
counsel because the Attorney General could no longer act as their
defense counsel. The net effect of these impacts on state and local
agency litigation costs is unknown, but could result in either
significant savings or costs.
Potential Indirect Impacts on State and Local Revenues and Costs.
This measure could have a net positive fiscal effect on state and local
revenues, to the extent that it reduces delays associated with
development projects by reducing the number of challenges to EIRs. Such
potential reductions in development delays could lead to increases in
firms' profitability and the level of economic activity, leading to
corresponding increases in state and local revenues. The scale of this
potential positive effect on the economy and state and local revenues is
unknown. The fiscal effect, if any, of the measure on costs for state
and local government agencies to mitigate environmental effects, for
either their own projects or other projects approved by CEQA lead
agencies, is unknown.
Summary of Fiscal Effects
In summary, the initiative would have the
following major fiscal effects:
Potential additional net costs for DOJ from
increased CEQA litigation workload, likely not more than the low
millions of dollars annually.
Potentially significant savings or costs for
state and local government litigation defense in CEQA cases.
Unknown, but likely positive, net impact on
state and local government revenues from increased economic
activity. Unknown fiscal effect, if any, on state and local
government costs to mitigate environmental effects of projects.
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