Tips to streamline settlement of CEQA lawsuits

The California Environmental Quality Act (CEQA), the state’s environmental impact review law, has been in the news a lot lately – particularly proposals from Gov. Gavin Newsom to streamline CEQA lawsuits. CEQA requires that state and local agencies disclose and evaluate the significant environmental impacts of proposed projects and adopt all feasible mitigation measures to reduce or eliminate those impacts. Recent May 2023 articles in the Daily Journal have headlined that the “Governor Lays Out Steps to Speed Up CEQA Litigation” and that the “Proposal Would Speed CEQA Record Preparation.”

In thinking how land use and environmental lawyers can more effectively resolve CEQA cases, one existing, underutilized tool is the early mandatory settlement meeting process set forth in California Public Resources Code section 21167.8. It requires that the parties meet and attempt to settle the litigation within 45 days of service of the petition. “The settlement meeting discussions shall be comprehensive in nature and shall focus on the legal issues raised by the parties concerning the project that is the subject of the litigation.”

Too often, however, this mandatory early settlement meeting is pro forma, abbreviated and does not meaningfully assist in resolving the dispute. To make matters worse, once the meeting is over the parties normally are exempted by California Code of Civil Procedure section 1775.3 from the requirement to further participate in alternative dispute resolution (ADR). To get the most out of the mandatory early settlement meeting and to help resolve CEQA cases, please consider these five tips:

Prepare a confidential settlement term sheet beforehand – Take the opportunity to work with the clients to identify the key terms or goals for settlement. Circulate a confidential term sheet to the other side before the CEQA settlement meeting to focus the discussion and identify the key issues – even if some terms may be preliminary. Consider a pre-discussion with opposing counsel to set the intention for a productive early settlement meeting and discuss key particulars, including confidentiality.

Invite the clients to participate – By having the clients attend the early settlement meeting, they learn about the litigation process, focus on key settlement issues and become invested in the discussion. The clients can identify questions to obtain important information from the other side. Client participation, if carefully facilitated, can also build trust with the other side and explore common interests in a confidential setting, which are key factors to conflict resolution. This is especially true for the petitioner and project proponent (real party in interest).

Engage a mediator – A skilled mediator with experience in land use cases will help maximize the value of the mandatory early CEQA settlement meeting. Mediation gives the parties the opportunity to discuss and perhaps evaluate the disputed issues, litigation costs and remedy options (including creative alternatives), clear up misunderstandings with active listening, and the ability to control the outcome without the risk and expense of trial.

Remote or in-person meeting – Zoom and remote meetings are becoming the norm, even for mediations. There are many benefits to remote settlement meetings, including convenience and comfort for the clients. However, there also are advantages to convening in-person in a welcoming space. The parties’ time, travel and in-person presence can make for a more meaningful investment in the mandatory early settlement meeting and provide the opportunity to build relationships by and between clients and counsel.

Agree to next steps – Perhaps the CEQA early meeting is too soon or the parties need additional time to understand the merits, so set up a specific timeline for next steps. Agree on a future date for exchange of written settlement proposals, or for a more formal mediation session or ADR settlement conference before the parties expend extensive resources on record preparation, briefing or trial.

Collectively, these five tips can help achieve productive outcomes at the CEQA mandatory early settlement meeting. By investing more time and preparation in the mandatory early settlement meeting, we can streamline the potential resolution of CEQA cases.