At one time or another, in almost every jurisdiction around the state, on the day before an important project land use hearing, an opponent of the project has submitted a lengthy comment letter (often accompanied by voluminous attachments) alleging that the environmental analysis does not comply with the California Environmental Quality Act (CEQA). The lead agency then faces a difficult choice, either continue the hearing and prepare a response to the late comments, or proceed with the hearing and assume the risk that the administrative record does not contain sufficient evidence to respond to the new contentions and information. This scenario plays out countless times every year around the state, and it is a practice presently sanctioned by CEQA.
Public Resources Code § 21177(a) grants a project opponent standing to sue under CEQA so long as “the alleged grounds for noncompliance with [CEQA] were presented to the public agency . . . during the public comment period provided by [CEQA] or prior to the close of the public hearing on the project . . . .” (emphasis added). Because most projects analyzed under CEQA require a public hearing, project opponents often wait to submit allegations of CEQA error until the eve of hearing (as described above). From a time and resources standpoint, this limits the ability of a lead agency to meaningfully respond. Furthermore, unless the agency hits the pause button and further delays the project, late arriving information typically precludes the agency from making beneficial adjustments to the project, or proposed mitigation measures and alternatives.
A new bill working its way through the Senate would eliminate most of the concerns regarding late arriving comments. SB 1451 would amend Public Resources Code § 21177(a) to prevent a project opponent from gaining standing to sue unless he or she presented the alleged CEQA error during the public comment period on the CEQA document, unless “the alleged grounds for noncompliance were not known and could not have been known with the exercise of reasonable diligence during the public comment period or if no public comment period was provided by [CEQA] . . . .” (SB 1451 [amended April 21, 2014].
Based on the proposed exception quoted above, SB 1451 would not eliminate all last-minute comments at a public hearing. For example, comments on changes made to an EIR after the public comment period (as it evolves from a Draft EIR to a Final EIR) may be fair game so long as the changes were not known and could not have been known. SB 1451 would substantially limit the scope of such comments, however, and would re-focus the efforts of all interested parties on the public comment period.
In adopting CEQA, the Legislature expressly intended that public comments be “made to lead agencies as soon as possible in the review of environmental documents . . . in order to allow the lead agencies to identify, at the earliest possible time in the environmental review process, potential significant effects of a project, alternatives, and mitigation measures which would substantially reduce the effects.” (Pub. Res. Code § 21003.1(a).)
CEQA practitioners recognize the tension between Section 21003.1(a)’s policy that comments be presented to the lead agency as early as possible, and Section 21177(a)’s permissive approach to allowing CEQA comments to be submitted up until the close of the public hearing. For example, at the 2013 Yosemite Environmental Law Conference, a mixed panel of CEQA practitioners agreed that the practice of “late hit” document dumps is ripe for CEQA reform (or at least, they appeared to agree). Left undecided, however, were the terms of resolution.
While it remains to be seen how this modest CEQA reform will fare in the Legislature, SB 1451 as currently framed would bring CEQA practice closer to the ideal expressed in the statute.
By Tim Taylor and Ryan Waterman.