California's Environmental Quality Act, aka CEQA, has both procedural and substantive
mandates. Public agencies cannot "approve projects as proposed if there are feasible
alternatives or feasible mitigation measures available which would substantially lessen
the significant environmental effects of such projects." Pub. Resources Code Section
21002.0 (further statutory references are to this code unless otherwise specified).
CEQA is a citizen-enforced statute, and parties not satisfied with a lead agency's
compliance with CEQA may petition for judicial review in mandamus. Both judges and
attorneys must be familiar with CEQA's unique litigation deadlines and processes that
implement this important law.
The objective of this article and accompanying self-study test is to provide an overview
of the filing requirements for petitions seeking review involving CEQA, including
statutes of limitation, naming indispensable parties, issues regarding standing to
sue, and exhaustion of remedies.
Statutes of Limitation
CEQA's statutes of limitations and service deadlines are unusually short and are strictly
enforced. Lee v. Lost Hills Water Dist.
, 78 Cal. App. 3d 630 (1978). When CEQA claims are joined with non-CEQA claims governed
by different limitations periods, the CEQA statutes of limitations apply to the CEQA
claims. Committee for a Progressive Gilroy v. State Water Resources Control Board
, 192 Cal. App. 3d 847 (1987). An exception is a CEQA case that includes a Subdivision
Map Act claim - a petitioner must comply with the filing and service deadlines of
both acts. Friends of Riverside Hills v. City of Riverside
, 168 Cal. App. 4th 743 (2008).
CEQA challenges arise only after project approval and are not yet ripe when an environmental
document is certified. The adequacy of a CEQA document depends on the actual project
that is approved in reliance upon its content. Section 21167. In California Water Impact Network v. Newhall County Water Dist.
, 161 Cal. App. 4th 1464 (2008), a legal challenge to a water supply assessment prepared
as part of an environmental impact report (EIR) was held premature pending approval
of a project based on the assessment.
Statutes of limitations vary according to the CEQA action taken. CEQA's 30- and 35-day
statutes of limitation commence with a lead agency's filing and posting of a notice
of determination (NOD) or notice of exemption (NOE) at the offices of the county clerk.
Section 21167(b), (c), (d), (e).
The CEQA statute of limitations is 30 days for the following agency actions following
the filing and posting of an NOD:
- Approval of a project for which an EIR or negative declaration was prepared. Sections
21167(b), (c), (e); 21152.
- Approval of a project based on a CEQA document prepared pursuant to a state agency's
certified regulatory program. Section 21080.5(g).
- The decision by the secretary of resources to certify a state agency's regulatory
program as the functional equivalent of an EIR process. Section 21080.5(h).
The statute of limitations is 35 days following approval of a project and the filing
and posting of an NOE for a project that an agency treats as exempt from CEQA. Section
A mandamus petition challenging an agency's failure to approve a CEQA document before
approving a project must be filed not more than 180 days from the date the agency
formally approved the project, or if the agency made no such formal approval, from
the date of project commencement. Section 21167(a), (d); Cumming v. City of San Bernardino Redevelopment Agency
, 101 Cal. App. 4th 1229 (2002). If an agency substantially changes a project after
certifying an EIR, but fails to prepare a subsequent EIR or notify the public, then
a petition must be filed within 180 days from the date the petitioner knew or reasonably
should have known of the project changes. Concerned Citizens of Costa Mesa v. 32nd District Agricultural Association
, 42 Cal. 3d 929 (1986).
- In a unique application of the 30-day statute of limitations based not on a CEQA
provision but on the Government Code, May v. City of Milpitas
, 217 Cal. App. 4th 1307 (2013), barred a CEQA action under the 30-day statute applicable
to residential development projects consistent with a specific plan, pursuant to Government
Code Section 65457. The court rejected arguments to apply CEQA's 35-day statute of
limitations for projects claimed exempt.
- An NOD or NOE posted before a project is approved does not trigger the statute of
limitations. E.g., Coalition for Clean Air v. City of Visalia
, 209 Cal. App. 4th 408 (2012).
- The state Supreme Court upheld a facially sufficient NOE in Stockton Citizens for Sensible Planning v. City of Stockton
, 48 Cal. 4th 481 (2010), reversing an appellate opinion that found the notice ineffective
based on the arguable invalidity of the underlying project approval. The Supreme Court
also upheld a 30-day statute of limitations in Committee for Green Foothills v. Santa Clara County
, 48 Cal. 4th 32 (2010), for subsequent activities approved for a trail relocation
- An effective NOD must be posted for the entire 30-day statutory period. Latinos Unidos de Napa v. City of Napa
, 196 Cal. App. 4th 1154 (2011).
- Parties may agree to toll the CEQA statute of limitations. Salmon Protection and Watershed Network v. County of Marin
, 205 Cal. App. 4th 195 (2012).
Naming Indispensible Parties
CEQA has a special provision addressing indispensable parties. A CEQA mandamus petition
must name as a real party in interest any recipient of a project approval challenged
in the lawsuit, as named in an NOE or NOD. Section 21167.6.5.
Broad Standing to Sue
A writ of mandate may issue only upon the verified petition of the party beneficially
interested. Code Civ. Proc. Section 1086; Braude v. City of Los Angeles
, 226 Cal. App. 3d 83 (1990). General allegations that a petitioner is within the
class of persons beneficially interested in the subject of the action and is a citizen
or resident of the affected area are normally "sufficient to satisfy the liberal standing
requirements for private individuals acting in the public interest ... to enforce
the provisions of CEQA." Kane v. Redevelopment Agency
, 179 Cal. App. 3d 899 (1986).
The state Supreme Court in Save the Plastic Bag Coalition v. City of Manhattan Beach
, 52 Cal. 4th 155 (2011), rejected the analysis of Waste Management of Alameda County Inc. v. County of Alameda
, 79 Cal. App. 4th 1223 (2000), that a corporation with a financial stake in the permitting
process of a competitor was advancing an economic interest, rather than an environmental
interest, and had no standing. In allowing a CEQA suit brought by plastic bag manufacturers
that alleged a public interest, the Supreme Court adopted a broad application of standing,
holding that corporations are not held to a different, higher standing than natural
Exhaustion of Remedies
Alleged grounds for noncompliance with CEQA must be presented to the CEQA lead agency
"by any person" before filing suit. Section 21177(a). To exhaust remedies, objections
must be made "during the public comment period provided by this division or prior
to the close of the public hearing on the project before the issuance of the notice
of determination." Section 21177(b).
Galante Vineyards v. Monterey Peninsula Water Management Dist.
, 60 Cal. App. 4th 1109 (1997), held that objections to an agency's compliance with
CEQA, including attacks on a draft EIR, may be raised any time before the close of
the final public hearing on the project before its approval. Section 21177(a). Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster
, 52 Cal. App. 4th 1165 (1997), held that CEQA's exhaustion requirements do not apply
to a project approved on the assumption that it is exempt from CEQA. The state Supreme
Court ruled in Tomlinson v. County of Alameda
, 54 Cal. 4th 281 (2012), that a petitioner must exhaust administrative remedies to
challenge a categorical exemption if the lead agency holds a noticed public hearing
addressing the exemption before relying on the exemption to approve a project.
A CEQA petitioner must exhaust remedies as to particular issues raised in a mandamus
petition. Some CEQA issues were barred because of failure to exhaust remedies in Sierra Club v. City of Orange
, 163 Cal. App. 4th 523 (2008) (portion of EIR challenge claiming piecemealing of
environmental issues was disallowed), and California Native Plant Society v. City of Rancho Cordova
, 172 Cal. App. 4th 603 (2009) (comments that incorporated by reference analysis contained
in another EIR did not automatically exhaust remedies and petitioner failed to exhaust
remedies as to adequacy of off-site wetland mitigation).
In California Clean Energy Committee v. City of San Jose
, 220 Cal. App. 4th 1325 (2013), exhaustion of remedies was excused when the city
improperly delegated the task of certifying an EIR to a non-decisionmaking body.
Only parties that objected to a lead agency's approval of a project either orally
or in writing may file a mandamus petition seeking review of the approval. Section
21177(b); California Aviation Council v. County of Amador
, 200 Cal. App. 3d 337 (1988). A new organization created after project approval may
file an action provided that one of its members objected to the project orally or
in writing. Section 21177(c); Garrison v. Board of Directors of United Water Conservation Dist.
, 36 Cal. App. 4th 1670 (1995). A new and temporary (until 2016) amendment to Section
21177(c) disallows a new group formed after a project approval to litigate issues
raised by others. A member of the new group must both have objected to the project
approval and have raised each issue before the public agency.
The exhaustion requirements do not apply when there is no public hearing or if the
agency failed to give notice required by law. Section 21177(e); Santa Teresa Citizen Action Group v. City of San Jose
, 114 Cal. App. 4th 689 (2003) (exhaustion requirement does not apply where there
was "no clearly defined administrative procedure for petitioners to resolve their
concerns about the project").
Before filing a mandamus petition, all of the agency's own administrative procedures
must be exhausted. If a timely administrative appeal is not filed to challenge the
agency's CEQA determination, the court has no jurisdiction over the CEQA petition.
Tahoe Vista Concerned Citizens v. County of Placer
, 81 Cal. App. 4th 577 (2000). An administrative appeal filed by someone other than
the CEQA petitioner is sufficient. Citizens for Open Government v. City of Lodi
, 144 Cal. App. 4th 865 (2006).
Exhaustion requirements do not require pursuit of a discretionary rehearing, even
if available. Formerly, the state Supreme Court required a party to apply for reconsideration
or rehearing if allowed by the governing statute. Alexander v. State Personnel Board
, 22 Cal. 2d 198 (1943). In Sierra Club v. San Joaquin Local Agency Formation Commission
, 21 Cal. 4th 489 (1999), the Supreme Court overruled Alexander
If an advisory commission or agency staff member certifies an EIR, approves a Negative
Declaration, or finds that a project is exempt from CEQA, the agency must provide
for an administrative appeal of that CEQA determination to the agency's elected officials,
if any (e.g., a city council or county board of supervisors). Section 21151(c).