I recently analyzed proposed legislation (SB 122) seeking to create an alternative procedure for preparation of the CEQA administrative record concurrently with administrative proceedings on a project and prior to any litigation challenging it. (See “Latest Proposed CEQA Legislation (SB 122) Seeks To Reform Administrative Record Process – At A Price,” by Arthur F. Coon, posted January 22, 2015.) Under proposed SB 122 the project applicant could initiate the alternative procedure by request to the public agency and, if the procedure were agreed to by the agency, an expedited and statutorily complete record would be prepared. However, this would be solely at the applicant’s cost and without any ability to recover that cost even if successful in subsequent litigation.
This aspect of the proposal troubled me. It caused me to question whether such cost-shifting to the applicant would be fair or good public policy. On one hand, if litigation challenging a project is anticipated, having “control” so as to ensure an expeditiously prepared and statutorily complete record is a significant strategic benefit for the agency and real party who must defend the litigation. On the other hand, this is so mainly because (in the first place) CEQA allows petitioners to elect to prepare the record themselves – despite the fact that they have the most to gain by preparing an underinclusive, statutorily incomplete record and also from delaying its preparation. (See, e.g., County of Orange v. Superior Court (2003) 113 Cal.App.4th 1, 13 [CEQA petitioners, as the parties “with the most to gain from any underinclusion,” bear “the burden of showing prejudice from any overinclusion of materials into the administrative record”]; Stockton Citizens For Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481, 500 [noting patent “legislative concern that CEQA challenges, with their obvious potential for financial prejudice and disruption, must not be permitted to drag on to the potential serious injury of the real party in interest” and that the “Legislature has obviously structured the legal process for a CEQA challenge to be speedy so as to prevent it from degenerating into a guerilla war of attrition by which project opponents wear out project proponents.”].)
The primary rationale for allowing petitioners to prepare the record – rather than simply having the public agency do so in all cases – appears to be to save them expense. (Coalition for Adequate Review v. City and County of San Francisco (2014) 229 Cal.App.4th 1043, 1051-1052 [contrasting “traditional procedure” whereby petitioner requests agency to prepare record with CEQA statute’s “other record preparation options to help reduce record preparation costs”].) However, any party preparing the record already has a statutory duty to strive to do so at reasonable cost (St. Vincent School for Boys, Catholic Charities CYO v. City of San Rafael (2008) 161 Cal.App.4th 989, 1014, citing Pub. Resources Code, § 24167.6(f)), and logically, the...
