COURT OF APPEAL HOLDS “DISCOVERY RULE” DOES NOT EXTEND CEQA STATUTE OF LIMITATIONS

July 26th, 2016

By: Thomas Law Group



In Communities for a Better Environment v. Bay Area Air Quality Management District, 2016 Cal. App. LEXIS 596, Petitioners challenged Bay Area Air Quality Management District’s (BAAQMD) July 2013 determination that the approval of the Richmond rail-to-truck facility to transload crude oil instead of ethanol was ministerial and therefore not subject to CEQA. BAAQMD did not provide the public with notice of its determination and Petitioners did not learn of the decision until January 31, 2014, when one of Communities for a Better Environment’s staff members received an email disclosing the change from ethanol to crude oil.

Petitioners filed their petition in March 2014 and it was subsequently dismissed by the trial court as untimely. Petitioners appealed, arguing that the so called “discovery rule” applied. In the typical case, the discovery rule postpones the accrual of an action from the date an injury occurs until the date the plaintiff has actual or constructive notice of the facts constituting the injury. Petitioners argued that the discovery rule should apply in this case because there was no way to discover that the approval had taken place—they claimed that the transloading operation is entirely enclosed, making any changes invisible to the public.

The appellate court held that the discovery rule did not extend the statute of limitations in this case because the legislature created the applicable triggering dates when drafting the statute and those dates, providing constructive notice to Petitioners, had occurred. Specifically, an action to challenge a determination that a project is not subject to CEQA accrues on one of three alternative dates set forth in Public Resources Code section 21167, subdivision (d): (1) filing of a notice that the project is not subject to CEQA, which triggers a 35 day statute of limitations; (2) if no notice is filed, then within 180 days of the agency’s formal decision to carry out or approve the project; or (3) if there is no formal determination, then within 180 days from the commencement of the project.

The court distinguished the situation from Concerned Citizens of Costa Mesa, Inc. v. 32nd District Agricultural Association (1986) 42 Cal.3d 929, where the Supreme Court held that an action accrues on the date a plaintiff knew or reasonably should have known of the project only if no statutory triggering date has occurred. Here, the court held that the triggering dates had occurred, even if they were not apparent to Petitioners.

While the court acknowledged that public participation may be served by applying the discovery rule in cases such as this, where no notice is given and there is virtually no indication to the public that the project has been approved and commenced, it concluded that it could not read such an exception into the statutory text, such a change would have to be initiated by the Legislature.