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 public agency which is in physical possession of the record would appear to be best situated to efficiently marshal, organize and prepare its contents.
What should be of serious concern to lead agencies, and to real party project proponents, is that the incentives of CEQA petitioners possessing a statutory option to elect to prepare the record are, perversely, at odds with CEQA’s existing statutory directives mandating (a) a comprehensive and statutorily complete record that is (b) prepared and certified as complete within 60 days after the election (or request) to prepare is made. (Pub. Resources Code, §§ 21167.6(b),(e).) In short, based on what are likely insignificant perceived cost savings, CEQA currently “sets the fox to guard the henhouse” by allowing CEQA petitioners to prepare the agency’s record of proceedings if they so elect. In my view, this legislative policy choice should not simply be accepted as a given; rather, it should be scrutinized and reexamined, as there would appear to be far better means of controlling (and, perhaps standardizing) record preparation costs than to place petitioners with conflicting litigation incentives in charge of this crucial process.
A related abuse now frequently occurs in the CEQA litigation process. Namely, CEQA petitioners’ use of the Public Records Act (“PRA”; Gov. Code, § 6250, et seq.) to try to shift the cost of administrative record preparation to the public agency – even where petitioners themselves have elected to prepare the record. As background, courts recognize “the statutory policy of shifting the costs and expenses of preparing an administrative record away from the public and to the private individual or entity bringing the lawsuit.” (The Otay Ranch, L.P. v. County of San Diego (2014) 230 Cal.App.4th 60, 70-71; see also, Coalition for Adequate Review, supra, 229 Cal.App.4th at 1052 [holding CEQA statute’s “cost provision, by its plain terms, places the costs an agency incurs in preparing the record on the parties, not the public agency” and that its “rationale … is that ‘taxpayers … should not have to bear the cost of preparing the administrative record in a lawsuit brought by a private individual or entity.’”].) They also appear to recognize that the PRA cannot be used without limitation as an “end run” around important statutory procedures and protections relating to the discovery or production of evidence in pending civil litigation. (County of Los Angeles v. Superior Court (2000) 82 Cal.App.4th 819, 827-830, [citing case law recognizing statutory restrictions on PRA requests; not deciding whether PRA contains implied relevancy limitation when used in pending litigation; and suggesting that abuse of discovery rules in civil actions through PRA requests can be dealt with by court handling the civil action].)
Nonetheless, after filing a CEQA writ petition and notice of election to prepare the record, CEQA petitioners’ counsel routinely immediately send a PRA request letter to the lead agency requesting it to provide access to all of the 11 broad and nonexclusive categories of documents described in Public Resources Code § 21167.6(e) (the statute describing the required contents of a CEQA administrative record). One such letter I recently reviewed ominously reminded the public agency recipient (with a case citation) that a court can overturn approvals based on an inadequate or improper record, and advised that to the extent it can comply with the PRA “by presenting the requested documents in a timely, complete and well-organized fashion” it will “enhance” petitioner’s ability to carry out its statutory election to prepare a record “that is acceptable to the court.” The letter closed by requesting that the agency provide a cost estimate “before taking any action that might result in charges for reimbursement (i.e., fees established by statute or the ‘direct cost’ of copying documents or electronic formatted data),” and further advised that petitioner “will not accept liability for any costs incurred by the [agency] taken in complying with this PRA request [unless authorized by the PRA and pre-approved by petitioner] – especially in light of [petitioner’s] sole, statutory right to supervise and control all aspects of preparation of the administrative record in this action….”
Setting aside whether a PRA request couched in the expansive and comprehensive language of Public Resources Code § 21167.6(e) “reasonably describes an identifiable record or records” within the meaning and intent of the PRA (Gov. Code, § 6253 (b)), petitioners’ use of the PRA in this fashion circumvents public policy by forcing public agencies – ironically, at the behest of petitioners who have supposedly “elected” to “prepare” the record themselves – to shoulder both the burdens of preparing and paying for preparation of administrative records in litigation brought against them by private parties. Based on this litigation abuse of using the PRA in conjunction with CEQA’s statutory election option, the public agency – and, by extension, any real party development approval recipient that must contractually indemnify it – gets the “worst of both worlds,” i.e., all of the responsibility and cost of preparing the record, but without ultimate “control” over the process.
While now viewed by some CEQA plaintiffs’ counsel as standard practice, I believe coupling of the PRA request process with the process for preparing administrative records for litigation in this manner is unlawful and, at the very least, violative of sound and established public policy – namely, the policy requiring private petitioners, not the public agency, to bear record preparation costs in the litigation context. The procedure now being employed by CEQA petitioners is unfair to public agencies (and real parties who indemnify them), and makes a mockery of both CEQA’s record preparation “election” option and the PRA’s fundamental purposes. While many public agencies might be well advised to substantially increase the fees they charge to process CEQA administrative appeals to try to defray unfairly shifted costs (see, e.g., Friends of Glendora v. City of Glendora (2010) 182 Cal.App.4th 573, 579 [declining to interpret CEQA as requiring that agencies waive their customary fees for filing administrative appeals of CEQA decisions]), CEQA’s statutory rights are not set in stone, or of constitutional stature, as the Court of Appeal has recently reminded us. (Saltonstall v. City of Sacramento (2014) 231 Cal.App.4th 837, 854-855, 858.) This observation applies fully to petitioners’ current statutory “right” under CEQA to elect to prepare the administrative record.
The Legislature should bear these thoughts in mind as it further ponders meaningful “reform” of the CEQA record preparation process.