Everyone seems to talk about abuses of the CEQA process and meaningful CEQA reform, but nothing ever seems to get done, much to the chagrin of developers who find themselves the target of CEQA litigation.  The California legislature may have taken a small, but important, step toward rectifying this situation with its 2010 enactment of Public Resources Code Section 21169.11.  The statute was enacted as part of an urgency measure, to curb litigation abuses and provide relief from frivolous claims made in CEQA actions.  (SB 1456 (Stats. 2010, Ch. 496.))

In brief, the new statute provides:

  • Where a court determines a claim made in the course of a CEQA action is frivolous, i.e., totally and completely without merit, it “may impose an appropriate sanction, in an amount up to ten thousand dollars ($10,000)”
  • “The sanction may be imposed upon the attorneys, law firms, or parties responsible for the violation.”  
  • The sanctions motion may be made “at any time after a petition has been filed pursuant to this division, but at least 30 days before the hearing on the merits.”

It’s too early to tell whether this provision will prove to be an effective deterrent against frivolous CEQA actions and claims, or a mere “band aid,” since no appellate court has yet construed it and I’m not aware of any trial court that has yet done so.   However, it should make some attorneys and their clients “think twice” before raising bogus CEQA claims just to stop or hinder a project. 

A particularly good sign for those who may utilize the statute to combat frivolous CEQA claims is that it does not require proof of subjective “bad faith” or improper motive, as do some other (generally ineffective) sanctions statutes applicable to civil litigation.  Rather, the new statute defines “frivolous” to mean “totally and completely without merit,” and courts have construed such language in analogous contexts as providing an objective standard i.e., “any reasonable attorney would agree that the action [or claim] is totally and completely without merit.”  (Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 12.)

Also providing some hope is the governor’s signing message, which expressed frustration regarding an abusive use of CEQA “to prevent reasonable management of environmental resources while simultaneously forcing huge expenditures of taxpayer dollars” and that “even our most routine environmental statutes present obstacles for public projects deemed good for the environment” and with “special interest groups bent on miring necessary and worthwhile development in years of litigation, uncertainty, and additional expense.”

In short, while the maximum statutory sanctions amount – $10,000 – will not likely be enough for more than partial reimbursement of the litigation costs of defending frivolous CEQA claims, the statute could actually prove an effective deterrent to such claims if it is used judiciously by CEQA defense attorneys and enforced as written by the trial courts.