Bill Text: CA AB1117 | 2017-2018 | Regular Session | Introduced
Bill Title: California Environmental Quality Act.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2018-02-01 - From committee: Filed with the Chief Clerk pursuant to Joint Rule 56. [AB1117 Detail]
Download: California-2017-AB1117-Introduced.html
CALIFORNIA LEGISLATURE—
2017–2018 REGULAR SESSION
| Assembly Bill | No. 1117 |
| Introduced by Assembly Member Fong |
February 17, 2017 |
An act to amend Sections 21005, 21080, 21091, 21167.6, 21168.5, 21168.9, and 21177 of, and to add Sections 21166.5 and 21175 to, the Public Resources Code, relating to environmental quality.
LEGISLATIVE COUNSEL'S DIGEST
AB 1117, as introduced, Fong.
California Environmental Quality Act.
(1) The California Environmental Quality Act (CEQA) 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. CEQA also requires a lead agency to prepare a mitigated negative declaration for a project that may have a significant effect on the environment if revisions in the project would avoid or mitigate that effect and there is no substantial evidence that the project, as revised, would have a significant effect on the environment. CEQA requires the lead agency to determine whether a project may have a significant effect on the environment based on substantial evidence in light of the whole
record.
This bill would prohibit a lead agency from being required to evaluate the aesthetic effects of a project subject to CEQA and would prohibit aesthetic effects from being considered significant effects on the environment, except in certain circumstances.
(2) CEQA 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 CEQA.
This bill would require a plaintiff or petitioner, in an action brought pursuant to the provisions of CEQA, to disclose the identity of a person or entity that contributes in excess of $1,000, as specified, toward the plaintiff’s or petitioner’s costs of the action and to identify any pecuniary or business interest
related to the project or issues involved in the action of any person or entity that contributes in excess of $1,000 to the costs of the action, as specified. The bill would provide that a failure to comply with these requirements shall be grounds for dismissal of the action by the court.
The bill would declare that it is the intent of the Legislature that CEQA not be used for a “nonenvironmental purpose,” including, but not limited to, competing with another business, delaying a project for reasons unrelated to environmental protection, or extracting concessions unrelated to the environment from project proponents. The bill would authorize the court, after a hearing on the evidence and upon a finding that a petitioner is using CEQA for primarily nonenvironmental purposes, to take any necessary action, including dismissal of the action, award of attorneys’ fees, or both. The bill would authorize the
court, if the court finds the petitioner has a pattern of using CEQA for primarily nonenvironmental purposes, to either order the petitioner to furnish security or enter a prefiling order prohibiting the petitioner from filing any new CEQA action, as specified. The bill would require the clerk of the court to provide the Judicial Council a copy of any prefiling orders and would require the Judicial Council to maintain a record of petitioners subject to those prefiling orders and to annually disseminate a list of those persons to the clerks of the court. The bill would prohibit a clerk of the court from accepting for filing any action or proceeding presented by a petitioner subject to a prefiling order unless the petitioner obtains an order from the presiding justice or judge permitting the filing.
(3) In an action or proceeding alleging the lead agency violated the act, the act requires the lead agency to prepare and certify the record of
proceedings and requires the parties to pay any reasonable costs or fees imposed for the preparation of the record of proceedings, as specified. The act authorizes the plaintiff or petitioner to elect to prepare the record of proceedings or for the parties to agree to an alternative method of preparation of the record of proceedings, subject to certification of its accuracy by the public agency. The act, in any action or proceeding to attack, review, set aside, void, or annul a determination, finding, or decision of a public agency on the grounds of noncompliance with the act, requires that the inquiry extend only to whether there was a prejudicial abuse of discretion and provides that abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.
This bill would eliminate the above authorization regarding the preparation of the record of proceedings.
Because the bill would require a lead agency that is a local agency to prepare the record of proceedings in all cases, this bill would impose a state-mandated local program. The bill would require, in determining whether a prejudicial abuse of discretion exists, the court to consider whether the agency made a good faith effort and otherwise substantially complied with the requirements of the act and would authorize the court to consider whether a different outcome would have resulted.
(4) CEQA authorizes a court, in an action or proceeding brought challenging the decision of a public agency on the grounds of noncompliance with CEQA, to enter an order to mandate that the determination, finding, or decision be voided by the public agency. The act also authorizes the court to enter an order to suspend any specific project activity if the court finds that the activity will prejudice the consideration and implementation of particular mitigation
measures or alternatives to the project.
This bill would authorize the court to enter the order mandating that the determination, finding, or decision be voided, provided that the order does not result in the eviction of residential tenants. The bill would authorize the court to enter the order to suspend a specific project activity if the court finds that the project activities will irreparably prejudice the consideration or implementation of mitigation measures or alternatives to the project. The bill would also prohibit the court from staying or enjoining the construction or operation of a project unless it makes certain findings.
(5) CEQA prohibits a person from bringing an action or proceeding challenging a public agency’s action on the grounds of noncompliance with CEQA unless the alleged grounds of noncompliance were presented, orally or in writing, to the public agency during the public comment
period or prior to the close of the public hearing on the project before the issuance of a notice of determination. CEQA prohibits a person from maintaining an action or proceeding unless that person objected to the approval of the project, orally or in writing, during the public comment period or before the close of the public hearing on the project before the filing of a notice of determination.
This bill would allow a person to bring an action or proceeding challenging a public agency’s action on the grounds of noncompliance, orally or in writing, after the public comment period but before the close of the public hearing if new information arises after the close of the public comment period that was not known or could not have been known or if there are significant discrepancies between the information contained in the environmental documentation and other documentation submitted to other state or federal regulatory agencies. The bill would allow a person to
maintain an action or proceeding if that person objected to the approval of the project orally after the public comment period and before the close of the public hearing, before filing the specified notice of determinations. The bill would allow an organization formed after the approval of a project to maintain an action if certain requirements are met.
(6)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: YESBill Text
The people of the State of California do enact as follows:
SECTION 1.
(a) The Legislature finds and declares all of the following:(1) The California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code) facilitates the maintenance of a quality environment for the people of the state through identification of significant effects on the environment caused by a proposed project, consideration of alternatives, and implementation of feasible mitigation measures to reduce those effects.
(2) The act is premised on transparency in decisionmaking through public dissemination of information about a proposed project’s effect on the environment.
(3) The act empowers the public to challenge a project in court for failure to fully comply with the act’s exhaustive disclosure and mitigation requirements.
(4) Various entities are increasingly using litigation pursuant to the act for competitive purposes to either frustrate a competitor’s project or to extract concessions from a project proponent.
(5) Despite the
act’s focus on transparency and public disclosure in the decisionmaking process, shadow groups funded by unknown backers often threaten and bring litigation challenging proposed projects without being required to disclose who is funding the litigation or what financial interests those entities have related to the proposed project.
(6) Project opponents now strategically use litigation to delay a project past its point of economic viability, thereby using litigation as a substitute to stop projects that could not otherwise be stopped during the decisionmaking process.
(7) California requires the disclosure of entities that fund the preparation and submission of amicus briefs to the court.
(8) The state and public have a compelling interest in the disclosure of the identities of entities that fund litigation under the act so they can better understand the identities of those organizations trying to accomplish through litigation what they could not accomplish through the public decisionmaking process, determine whether the petitioner or plaintiff may be suing for competitive purposes, and protect scarce judicial resources by deterring entities from using lawsuits for competitive purposes.
(9) The courts have a compelling interest in disclosure to determine whether the petitioner is seeking to advance environmental, nonenvironmental, or a mix of environmental and nonenvironmental interests in filing a lawsuit pursuant to the act.
(10) Some project opponents have developed a strategy, known as document dumping, of flooding the lead agency with hundreds or thousands of pages of written comments at or just before the public hearing at which the project will be considered for approval by the lead agency. This strategy is intended to add a great deal of uncertainty to the project approval process and thereby significantly delay project construction.
(11) The California Fourth District Court of Appeal, in Citizens for Responsible Equitable Environmental Development v. City of San Diego (2011) 196 Cal.App.4th 515 (CREED), held that a project opponent did not exhaust all administrative remedies when the project opponent submitted thousands of pages of unorganized documents as comments to a lead agency. In finding that the lead agency did not have to respond to those comments, the court noted that an issue must be fairly
presented to an agency and that objections be sufficiently specific so that an agency has the opportunity to evaluate and respond to the comments. Therefore, a group could not simply submit thousands of pages of unorganized documents to preserve issues for litigation.
(12) While the CREED decision provides an outer limit on document dumping, it has not stopped the practice. Project opponents continue to use document dumps at the last possible point in the process to delay approval of a project, complicate the proceedings, and tie the project up in the administrative process and litigation past the project’s point of economic feasibility.
(13) While the decision in CREED is helpful, lead agencies are still often left with little choice but to delay approval of the project so the agency can carefully consider the voluminous amount of late comments received at the hearing.
(b) It is the intent of the Legislature to require plaintiffs and petitioners bringing an action pursuant to the act to disclose those persons or entities who make contributions to fund the preparation of the petition and subsequent actions or proceedings and any financial interests they have related to the proposed project.
(c) It is the intent of the Legislature to prohibit the use of document dumps to delay projects, while preserving the ability of stakeholders to provide late comments, in good faith, when new information arises that could not have been addressed at an earlier point in the process.
SEC. 2.
Section 21005 of the Public Resources Code is amended to read:21005.
(a) The Legislature finds and declares(1) It is the policy of the state that noncompliance with the information disclosure provisions of this division which
that precludes relevant information from being presented to the public agency, or noncompliance with substantive requirements of this division, may constitute a prejudicial abuse of discretion within the meaning of Sections 21168 and 21168.5, regardless of whether a different outcome would have resulted if the public agency had complied with those provisions.
21168.5.
(2) A prejudicial abuse of discretion may exist regardless of whether a different outcome would have resulted if the public agency had complied with the provisions of this division; however, in determining whether a prejudicial abuse of discretion exists, the court should consider whether the agency made a good faith effort and otherwise substantially complied with the requirements of this division and may consider whether a different outcome would have resulted.
(b) It is the intent of the Legislature that, in undertaking judicial review pursuant to Sections 21168 and 21168.5, courts shall continue to follow the established principle that there is no presumption that error is prejudicial.
(c) It is further the intent of the Legislature that any court, which finds, or, in the process of reviewing a previous court finding, finds, that a public agency has taken an action without compliance with this division, shall specifically address each of the alleged grounds for noncompliance.
SEC. 3.
Section 21080 of the Public Resources Code is amended to read:21080.
(a) Except as otherwise provided in this division, this division shall apply to discretionary projects proposed to be carried out or approved by public agencies, including, but not limited to, the enactment and amendment of zoning ordinances, the issuance of zoning variances, the issuance of conditional use permits, and the approval of tentative subdivision maps unless the project is exempt from this division.(b) This division does not apply to any of the following activities:
(1) Ministerial projects proposed to be carried out or approved by public agencies.
(2) Emergency repairs to public service facilities necessary to maintain
service.
(3) Projects undertaken, carried out, or approved by a public agency to maintain, repair, restore, demolish, or replace property or facilities damaged or destroyed as a result of a disaster in a disaster-stricken area in which a state of emergency has been proclaimed by the Governor pursuant to Chapter 7 (commencing with Section 8550) of Division 1 of Title 2 of the Government Code.
(4) Specific actions necessary to prevent or mitigate an emergency.
(5) Projects which that a public agency rejects or disapproves.
(6) Actions undertaken by a public agency
relating to any thermal powerplant site or facility, including the expenditure, obligation, or encumbrance of funds by a public agency for planning, engineering, or design purposes, or for the conditional sale or purchase of equipment, fuel, water (except groundwater), steam, or power for a thermal powerplant, if the powerplant site and related facility will be the subject of an environmental impact report, negative declaration, or other document, prepared pursuant to a regulatory program certified pursuant to Section 21080.5, which will be prepared by the State Energy Resources Conservation and Development Commission, by the Public Utilities Commission, or by the city or county in which the powerplant and related facility would be located if the environmental impact report, negative declaration, or document includes the environmental impact, if any, of the action described in this paragraph.
(7) Activities or approvals necessary to the bidding
for, hosting or staging of, and funding or carrying out of, an Olympic games under the authority of the International Olympic Committee, except for the construction of facilities necessary for the Olympic games.
(8) The establishment, modification, structuring, restructuring, or approval of rates, tolls, fares, or other charges by public agencies which the public agency finds are for the purpose of (A) meeting operating expenses, including employee wage rates and fringe benefits, (B) purchasing or leasing supplies, equipment, or materials, (C) meeting financial reserve needs and requirements, (D) obtaining funds for capital projects necessary to maintain service within existing service areas, or (E) obtaining funds necessary to maintain those intracity transfers as are authorized by city charter. The public agency shall incorporate written findings in the record of any proceeding in which an exemption under this paragraph is claimed setting
forth with specificity the basis for the claim of exemption.
(9) All classes of projects designated pursuant to Section 21084.
(10) A project for the institution or increase of passenger or commuter services on rail or highway rights-of-way already in use, including modernization of existing stations and parking facilities. For purposes of this paragraph, “highway” shall have the same meaning as defined in Section 360 of the Vehicle Code.
(11) A project for the institution or increase of passenger or commuter service on high-occupancy vehicle lanes already in use, including the modernization of existing stations and parking facilities.
(12) Facility extensions not to exceed four miles in length which
that are required for the transfer of passengers from or to exclusive public mass transit guideway or busway public transit services.
(13) A project for the development of a regional transportation improvement program, the state transportation improvement program, or a congestion management program prepared pursuant to Section 65089 of the Government Code.
(14) Any project or portion thereof located in another state which that will be subject to environmental impact review pursuant to the National Environmental Policy Act of 1969 (42 U.S.C. Sec. 4321 et seq.) or similar state laws of that state. Any emissions or discharges that would have a significant
effect on the environment in this state are subject to this division.
(15) Projects undertaken by a local agency to implement a rule or regulation imposed by a state agency, board, or commission under a certified regulatory program pursuant to Section 21080.5. Any site-specific effect of the project which that was not analyzed as a significant effect on the environment in the plan or other written documentation required by Section 21080.5 is subject to this division.
(c) If a lead agency determines that a proposed project, not otherwise exempt from this division, would not have a significant effect on the environment, the lead agency shall adopt a negative declaration to that effect. The
negative declaration shall be prepared for the proposed project in either of the following circumstances:
(1) There is no substantial evidence, in light of the whole record before the lead agency, that the project may have a significant effect on the environment.
(2) An initial study identifies potentially significant effects on the environment, but (A) revisions in the project plans or proposals made by, or agreed to by, the applicant before the proposed negative declaration and initial study are released for public review would avoid the effects or mitigate the effects to a point where clearly no significant effect on the environment would occur, and (B) there is no substantial evidence, in light of the whole record before the lead agency, that the project, as revised, may have a significant effect on the environment.
(d) If there is substantial evidence, in light of the whole record before the lead agency, that the project may have a significant effect on the environment, an environmental impact report shall be prepared.
(e) (1) Except as provided in paragraph (2), a lead agency shall not be required to evaluate the aesthetic effects of a project under this division, and aesthetic effects shall not be considered to be a significant effect on the environment.
(2) Paragraph (1) does not apply to either of the following:
(A) A project with potentially significant aesthetic effects on an official state scenic highway established pursuant to Article 2.5 (commencing with Section 260) of Chapter 2 of Division 1 of the Streets and Highways Code.
(B) A project with potentially significant aesthetic effects on historical or cultural resources.
(3) Paragraph (1) does not change the authority of a lead agency to consider aesthetic issues and to require mitigation or avoidance of adverse aesthetic effects pursuant to discretionary powers otherwise provided by law.
(e)
(f) (1) For the purposes of this section and this division, substantial evidence includes fact, a reasonable assumption predicated upon fact, or expert opinion supported by fact.
(2) Substantial evidence is not argument, speculation, unsubstantiated opinion or narrative, evidence that is clearly inaccurate or erroneous, or evidence of social or economic impacts that do not contribute to, or are not caused by, physical impacts on the environment.
(f)
(g) As a result of the public review process for a mitigated negative declaration, including administrative decisions and public
hearings, the lead agency may conclude that certain mitigation measures identified pursuant to paragraph (2) of subdivision (c) are infeasible or otherwise undesirable. In those circumstances, the lead agency, prior to approving the project, may delete those mitigation measures and substitute for them other mitigation measures that the lead agency finds, after holding a public hearing on the matter, are equivalent or more effective in mitigating significant effects on the environment to a less than significant level and that do not cause any potentially significant effect on the environment. If those new mitigation measures are made conditions of project approval or are otherwise made part of the project approval, the deletion of the former measures and the substitution of the new mitigation measures shall not constitute an action or circumstance requiring recirculation of the mitigated negative declaration.
(g)
(h) Nothing in this section shall preclude a project applicant or any other person from challenging, in an administrative or judicial proceeding, the legality of a condition of project approval imposed by the lead agency. If, however, any condition of project approval set aside by either an administrative body or court was necessary to avoid or lessen the likelihood of the occurrence of a significant effect on the environment, the lead agency’s approval of the negative declaration and project shall be invalid and a new environmental review process shall be conducted before the project can be reapproved, unless the lead agency substitutes a new condition that the lead agency finds, after holding a public hearing on the matter, is equivalent to, or more effective in, lessening or avoiding significant effects on the environment and that does
not cause any potentially significant effect on the environment.
SEC. 4.
Section 21091 of the Public Resources Code is amended to read:21091.
(a) The public review period for a draft environmental impact report shall not be less than 30 days. If the draft environmental impact report is submitted to the State Clearinghouse for review, the review period shall be at least 45 days, and the lead agency shall provide a sufficient number of copies of the document, in either a hard-copy or electronic form as required by the Office of Planning and Research, to the State Clearinghouse for review and comment by state agencies.(b) The public review period for a proposed negative declaration or proposed mitigated negative declaration shall not be less than 20 days. If the proposed negative declaration or proposed mitigated negative declaration is submitted to the State Clearinghouse for review, the review period
shall be at least 30 days, and the lead agency shall provide a sufficient number of copies of the document, in either a hard-copy or electronic form as required by the Office of Planning and Research, to the State Clearinghouse for review and comment by state agencies.
(c) (1) Notwithstanding subdivisions (a) and (b), if a draft environmental impact report, proposed negative declaration, or proposed mitigated negative declaration is submitted to the State Clearinghouse for review and the period of review by the State Clearinghouse is longer than the public review period established pursuant to subdivision (a) or (b), whichever is applicable, the public review period shall be at least as long as the period of review and comment by state agencies as established by the State Clearinghouse.
(2) The public review period and the state agency review period may, but
are not required to, begin and end at the same time. Day one of the state agency review period shall be the date that the State Clearinghouse distributes the CEQA document to state agencies.
(3) If the submittal of a CEQA document is determined by the State Clearinghouse to be complete, the State Clearinghouse shall distribute the document within three working days from the date of receipt. The State Clearinghouse shall specify the information that will be required in order to determine the completeness of the submittal of a CEQA document.
(d) (1) The lead agency shall consider comments it receives on a draft environmental impact report, proposed negative declaration, or proposed mitigated negative declaration if those comments are received within the public review period.
(2) (A) With respect to the consideration of comments received on a draft environmental impact report, the lead agency shall evaluate comments on environmental issues that are received from persons who have reviewed the draft and shall prepare a written response pursuant to subparagraph (B). The lead agency may may, but is not required to, also respond to comments that are received after the close of the public review period.
(B) The written response shall describe the disposition of each significant environmental issue that is raised by commenters. The responses shall be prepared consistent with Section 15088 of Title 14 of the California Code of Regulations.
(3) (A) With respect to the consideration of comments received on a draft environmental impact report, proposed negative declaration, proposed mitigated negative declaration, or notice pursuant to Section 21080.4, the lead agency shall accept comments via electronic mail and shall treat electronic-mail comments as equivalent to written comments.
(B) Any law or regulation relating to written comments received on a draft environmental impact report, proposed negative declaration, proposed mitigated negative declaration, or notice received pursuant to Section 21080.4 shall also apply to electronic-mail comments received for those reasons.
(e) (1) Criteria for shorter review periods by the State Clearinghouse for documents that must be submitted to the State Clearinghouse shall be set forth in the written guidelines issued by the Office of Planning and
Research and made available to the public.
(2) Those shortened review periods may shall
not be less than 30 days for a draft environmental impact report and 20 days for a negative declaration.
(3) A request for a shortened review period shall only be made in writing by the decisionmaking body of the lead agency to the Office of Planning and Research. The decisionmaking body may designate by resolution or ordinance a person authorized to request a shortened review period. A designated person shall notify the decisionmaking body of this request.
(4) A request approved by the State Clearinghouse shall be consistent with the criteria set forth in the written guidelines of the Office of Planning and Research.
(5) A shortened review period may
shall not be approved by the Office of Planning and Research for a proposed project of statewide, regional, or areawide environmental significance as determined pursuant to Section 21083.
(6) An approval of a shortened review period shall be given prior to, before, and reflected in, the public notice required pursuant to Section 21092.
(f) Prior to Before carrying out or approving a project for which a negative declaration has been adopted, the lead agency shall
consider the negative declaration together with comments that were received and considered pursuant to paragraph (1) of subdivision (d).
SEC. 5.
Section 21166.5 is added to the Public Resources Code, to read:21166.5.
(a) It is the intent of the Legislature that this division shall not be used for nonenvironmental purposes. For purposes of this section, “nonenvironmental purposes” includes, but is not limited to, competing with another business, delaying a project for reasons unrelated to environmental protection, or attempting to extract concessions unrelated to the environment from project proponents.(b) A court, upon its own motion or that of a party, may conduct a hearing to determine if a petitioner is bringing and maintaining the action or proceeding under this division for nonenvironmental purposes. If, after a hearing on the evidence, a court determines that a petitioner is bringing and maintaining the action or proceeding for nonenvironmental
purposes, the court may take any action necessary, including, but not limited to, dismissal of the suit, award of attorneys’ fees, or both. At the hearing, the court shall consider any evidence, written or oral, by witness or affidavit, as may be material.
(c) If the court determines, in a hearing conducted pursuant to subdivision (b), that a petitioner has a pattern of bringing actions or proceedings under this division for nonenvironmental purposes, the court may do either of the following:
(1) Order the petitioner to furnish security in an amount, and within a time, that the court determines. If the petitioner fails to furnish security ordered by the court, the action shall be dismissed.
(2) (A) Enter a prefiling order that prohibits the petitioner from filing any new action or proceeding
pursuant to this division in the courts of this state without first obtaining leave of the presiding justice or presiding judge of the court where the new action or proceeding is proposed to be filed.
(B) A failure to comply with the prefiling order may constitute contempt of court.
(C) The presiding justice or presiding judge shall permit the filing of that action or proceeding only if it appears that the action or proceeding has merit and is not being filed for nonenvironmental purposes.
(i) The presiding justice or presiding judge may condition the filing of the new action or proceeding upon the furnishing of security for the benefit of the respondents.
(ii) The presiding justice or
presiding judge may designate a justice or judge of the same court to act on his or her behalf in exercising the authority and responsibilities provided under this subparagraph.
(D) The clerk of the court shall provide the Judicial Council a copy of any prefiling order issued pursuant to subparagraph (A). The Judicial Council shall maintain a record of petitioners subject to those prefiling orders and shall annually disseminate a list of those persons to the clerks of the courts of this state.
(E) The clerk of the court may not accept for filing any action or proceeding presented by a petitioner subject to a prefiling order unless the petitioner first obtains an order from the presiding justice or presiding judge permitting the filing as provided in
subparagraph (C).
(F) (1) A petitioner subject to a prefiling order may file an application to vacate the prefiling order. The application shall be filed in the court that entered the prefiling order, either in the action or proceeding in which the prefiling order was entered or in conjunction with a request to the presiding justice or presiding judge to file new litigation.
(2) A court may vacate a prefiling order and order removal of a petitioner’s name from the Judicial Council’s list of petitioners subject to prefiling orders upon a showing of a material change in the facts upon which the order was granted and that the ends of justice would be served by vacating the order.
(d) In conducting a hearing pursuant to subdivision (b), the court shall determine whether, and to what extent, the petitioner is seeking to protect the environment in a manner consistent with the goals and objectives of this division, to advance nonenvironmental purposes outside the goals and objectives of this division, or to advance a mixture of environmental and nonenvironmental purposes. The court shall take the actions specified in subdivisions (b) and (c) only if it finds nonenvironmental purposes are the primary motivation prompting the plaintiff to file the suit.
(e) When a motion is filed pursuant to subdivision (b) by a party prior to a hearing on the merits, the action or proceeding is stayed and the moving party need not plead, until 10 days after the motion has been denied, or if granted, until 10 days after any required security has been furnished by the petitioner pursuant to subdivision (c) and the moving party has
been given written notice of the furnishing of security.
(f) For the purpose of this section, “security” means an undertaking to assure payment, to the party for whose benefit the undertaking is required to be furnished, of the party’s reasonable expenses, including attorneys’ fees and not limited to taxable costs, incurred in or in connection with the action or proceeding.
SEC. 6.
Section 21167.6 of the Public Resources Code is amended to read:21167.6.
Notwithstanding any other law, in all actions or proceedings brought pursuant to Section 21167, except as provided in Section 21167.6.2 or those involving the Public Utilities Commission, all of the following shall apply:(a) At the time that the action or proceeding is filed, the plaintiff or petitioner shall file a request that the respondent public agency prepare the record of proceedings relating to the subject of the action or proceeding. The request, together with the complaint or petition, shall be served personally upon the public agency not later than 10 business days from the date that the action or proceeding was filed.
(b) (1)The
public agency shall prepare and certify the record of proceedings not later than 60 days from the date that the request specified in subdivision (a) was served upon the public agency. Upon certification, the public agency shall lodge a copy of the record of proceedings with the court and shall serve on the parties notice that the record of proceedings has been certified and lodged with the court. The parties shall pay any reasonable costs or fees imposed for the preparation of the record of proceedings in conformance with any law or rule of court.
(2)The plaintiff or petitioner may elect to prepare the record of proceedings or the parties may agree to an alternative method of preparation of the record of proceedings, subject to certification of its accuracy by the public agency, within the time limit
specified in this subdivision.
(c) The time limit established by subdivision (b) may be extended only upon the stipulation of all parties who have been properly served in the action or proceeding or upon order of the court. Extensions shall be liberally granted by the court when the size of the record of proceedings renders infeasible compliance with that time limit. There is no limit on the number of extensions that may be granted by the court, but no single extension shall exceed 60 days unless the court determines that a longer extension is in the public interest.
(d) If the public agency fails to prepare and certify the record within the time limit established in paragraph (1) of subdivision (b), or any continuances of that time limit, the plaintiff or petitioner may move
for sanctions, and the court may, upon that motion, grant appropriate sanctions.
(e) The record of proceedings shall include, but is not limited to, all of the following items:
(1) All project application materials.
(2) All staff reports and related documents prepared by the respondent public agency with respect to its compliance with the substantive and procedural requirements of this division and with respect to the action on the project.
(3) All staff reports and related documents prepared by the respondent public agency and written testimony or documents submitted by any person relevant to any findings or statement of overriding considerations adopted by the respondent agency pursuant to this division.
(4) Any transcript or minutes of the proceedings at which the decisionmaking body of the respondent public agency heard testimony on, or considered any environmental document on, the project, and any transcript or minutes of proceedings before any advisory body to the respondent public agency that were presented to the decisionmaking body prior to action on the environmental documents or on the project.
(5) All notices issued by the respondent public agency to comply with this division or with any other law governing the processing and approval of the project.
(6) All written comments received in response to, or in connection with, environmental documents prepared for the project, including responses to the notice of preparation.
(7) All written evidence or
correspondence submitted to, or transferred from, the respondent public agency with respect to compliance with this division or with respect to the project.
(8) Any proposed decisions or findings submitted to the decisionmaking body of the respondent public agency by its staff, or the project proponent, project opponents, or other persons.
(9) The documentation of the final public agency decision, including the final environmental impact report, mitigated negative declaration, or negative declaration, and all documents, in addition to those referenced in paragraph (3), cited or relied on in the findings or in a statement of overriding considerations adopted pursuant to this division.
(10) Any other written materials relevant to the respondent public agency’s compliance with this division or to its decision on the
merits of the project, including the initial study, any drafts of any environmental document, or portions thereof, that have been released for public review, and copies of studies or other documents relied upon in any environmental document prepared for the project and either made available to the public during the public review period or included in the respondent public agency’s files on the project, and all internal agency communications, including staff notes and memoranda related to the project or to compliance with this division.
(11) The full written record before any inferior administrative decisionmaking body whose decision was appealed to a superior administrative decisionmaking body prior to the filing of litigation.
(f) In preparing the record of proceedings, the party preparing the record
public agency shall strive to do so at reasonable cost in light of the scope of the record.
(g) The clerk of the superior court shall prepare and certify the clerk’s transcript on appeal not later than 60 days from the date that the notice designating the papers or records to be included in the clerk’s transcript was filed with the superior court, if the party or parties pay any costs or fees for the preparation of the clerk’s transcript imposed in conformance with any law or rules of court. Nothing in this subdivision precludes an election to proceed by appendix, as provided in Rule 8.124 of the California Rules of Court.
(h) Extensions of the period for the filing of any brief on appeal may be allowed only by stipulation of the parties or by order of the court for good cause shown. Extensions for the filing of a brief on appeal shall be
limited to one 30-day extension for the preparation of an opening brief and one 30-day extension for the preparation of a responding brief, except that the court may grant a longer extension or additional extensions if it determines that there is a substantial likelihood of settlement that would avoid the necessity of completing the appeal.
(i) At the completion of the filing of briefs on appeal, the appellant shall notify the court of the completion of the filing of briefs, whereupon the clerk of the reviewing court shall set the appeal for hearing on the first available calendar date.
SEC. 7.
Section 21168.5 of the Public Resources Code is amended to read:21168.5.
(a) In any action or proceeding, other than an action or proceeding under Section 21168, to attack, review, set aside, void or annul a determination, finding, or decision of a public agency on the grounds of noncompliance with this division, the inquiry shall extend only to whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.(b) In determining whether a prejudicial
abuse of discretion exists, the court shall consider whether the agency made a good faith effort and otherwise substantially complied with the requirements of this division and may consider whether a different outcome would have resulted.
SEC. 8.
Section 21168.9 of the Public Resources Code is amended to read:21168.9.
(a) If a court finds, as a result of a trial, hearing, or remand from an appellate court, that any determination, finding, or decision of a public agency has been made without compliance with this division, the court shall enter an order that includes one or more of the following:(1) A mandate that the public agency take specific action as necessary to bring the determination, finding, or decision into compliance with this division.
(1)
(2) A mandate that the determination, finding, or decision be voided by the public agency, in whole or in part. part, if the order issued by the court does not result in the eviction of residential tenants for a project’s failure to comply with this division.
(2)
(3) If the court finds that a specific project activity or
activities will irreparably
prejudice the consideration or implementation of particular mitigation measures or alternatives to the project, a mandate that the public agency and any real parties in interest suspend any or all specific project activity or activities, pursuant to the determination, finding, or decision, that could result in an adverse change or alteration to the physical environment, until the public agency has taken any actions that may be necessary to bring the determination, finding, or decision into compliance with this division.
(3)A mandate that the public agency take specific action as may be necessary to bring the determination, finding, or decision into compliance with this division.
(b) Any An
order pursuant to subdivision (a) shall include only those mandates which that are necessary to achieve compliance with this division and only those specific project activities in noncompliance with this division. The order shall be made by the issuance of a peremptory writ of mandate specifying what action by the public agency is necessary to comply with this division. However, the order shall be limited to that portion of a determination, finding, or decision or the specific project activity or activities found to be in noncompliance only if a court finds
If the order is limited to that portion of a determination, finding, or decision or the specific project activity found to be in noncompliance, a court shall make express findings, supported by substantial evidence, that (1) the portion or specific project activity or activities are severable, (2) severance will not prejudice complete and full compliance with this division, and (3) the court has not found the remainder of the project to be is not in noncompliance with this division. The trial court shall retain jurisdiction over the public agency’s proceedings by way of a return to the peremptory writ until the court has determined that the public agency has complied with this division.
(c) (1) In granting relief in an action or proceeding brought pursuant to this division, the court shall not stay or enjoin the construction or operation of a project unless the court finds either of the following:
(A) The continued construction or operation of the project presents an imminent threat to the public health and safety.
(B) The project location contains unforeseen important Native American artifacts or unforeseen important historical, archaeological, or ecological values that would be materially, permanently, and adversely affected by the continued construction or operation of the project unless the court stays or enjoins the construction or operation of the project.
(2) If the court finds that subparagraph (A) or (B) of
paragraph (1) is satisfied, the court shall enjoin only those specific activities associated with the project that present an imminent threat to public health and safety or that materially, permanently, and adversely affect unforeseen important Native American artifacts or unforeseen important historical, archaeological, or ecological values.
(c)Nothing in this
(d) This section authorizes
does not authorize a court to direct any public agency to exercise its discretion in any particular way. Except as expressly provided in this section, nothing in this section is intended to limit the equitable powers of the court.
SEC. 9.
Section 21175 is added to the Public Resources Code, to read:21175.
(a) In an action or proceeding to attack, review, set aside, void, or annul any act or decision of a public agency on the grounds of noncompliance with this division, the plaintiff or petitioner shall include an affidavit identifying every person or entity who made a monetary contribution of one thousand dollars ($1,000) or more, or committed to contribute one thousand dollars ($1,000) or more, for the preparation of the petition and subsequent action or proceeding.(b) The plaintiff or petitioner has a continuing obligation throughout the course of the action or proceeding to identify any person or entity that has made a single or multiple contributions or commitments, the sum of which is one thousand dollars ($1,000) or more and that was
intended to fund the action or proceeding.
(c) The disclosure required pursuant to subdivisions (a) and (b) shall also include the identity of any pecuniary or business interest that the person or entity has related to the proposed project.
(d) A plaintiff or petitioner may request the court’s permission to withhold the public disclosure of the contributor. The court may grant the request if it finds that the public interest in keeping that information confidential clearly outweighs the public interest in disclosure.
(e) A court may, upon its own motion or the motion of any party, take any action necessary to compel compliance with the requirements of this section, up to and including dismissal of the action or proceeding.
(f) The information disclosed
pursuant to this section may be used to enable a court to determine whether the financial burden of private enforcement supports the award of attorneys’ fees in actions or proceedings brought to enforce this division.
(g) To better enable the Legislature to understand actions and proceedings brought pursuant to this division, the court shall provide the information provided pursuant to subdivisions (a) to (c), inclusive, to the Office of Planning and Research, which shall compile and submit a report to the Legislature on or before January 1, 2019, and every two years thereafter. The report shall list each of those entities identified pursuant to subdivisions (a) and (b) and any pecuniary or business interests that the entity has related to the proposed project, unless the court grants a request to withhold the information pursuant to subdivision (d).
SEC. 10.
Section 21177 of the Public Resources Code is amended to read:21177.
(a) An action or proceeding shall not be brought pursuant to Section 21167 unless the alleged grounds for noncompliance with this division were presented to the public agency(1) Orally or in writing by any person during the public comment period provided by this division or prior to
division.
(2) Orally or in writing after the public comment period but before the close of the public hearing on the project before the issuance of the notice of determination. determination, where either of the following apply:
(A) New information arises after the close of the public comment period that was not known and could not have been known.
(B) There are significant discrepancies between the information contained in the environmental documentation and other documentation submitted to other state or federal regulatory agencies.
(b) A person shall not maintain an action or proceeding unless that person objected to the approval of the project orally
in either of the following ways:
(1) Orally or in writing during the public comment period provided by this division or prior to division.
(2) Orally after the public comment period and before
the close of the public hearing on the project before the filing of notice of determination pursuant to Sections 21108 and 21152.
(c) This section does not preclude any organization formed after the approval of a project from maintaining an action pursuant to Section 21167 if a member of that organization has complied with subdivision (b). both subdivisions (a) and (b) and the specific grounds for noncompliance raised in the action were properly presented to the public agency by one or more member of the after-formed organization in compliance with subdivision (a).
(d) This section does not apply to the Attorney General.
(e) This section does not apply to any alleged grounds for noncompliance with this division for which there was no public hearing or other opportunity for members of the public to raise those objections orally or in writing prior to the approval of the project, or if the public agency failed to give the notice required by law.
(f)This section shall become operative on January 1, 2016.
