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Posts Tagged ‘agency action’


Reasonable Administrative Record Preparation Costs Awarded to Agency Where Plaintiff Elected to Prepare and Failed to do so within 60-Day Limit

Thursday, June 28th, 2018

In LandWatch San Luis Obispo County v. Cambria Community Services District (2018) 25 Cal.App.5th 638, the Second District Court of Appeals affirmed an agency may properly take over the preparation of the administrative record per Public Resources Code section 21167.6(b)(1) when petitioner elects to prepare and fails to do so within 60 days.

LandWatch San Luis Obispo County (LandWatch) filed suit against Cambria Community Services District (District) for alleged CEQA violations in approving an emergency water supply project on January 30, 2014. In its initial pleading of October 2014, LandWatch elected to prepare the administrative record. District provided the documents to Petitioners in November 2014. The next month, the District notified LandWatch of additional documents. LandWatch requested the documents in March 2015 and received them in April 2015.

LandWatch presented a draft administrative record index in August 2015. The District notified LandWatch the draft was over and under inclusive and, to avoid further delays in distribution of $4.3 million in grant fund awards, prepared and certified the record itself.

The trial court granted leave for LandWatch to include additional documents. However, LandWatch then failed to timely request the documents, stalling from December to February. This was problematic as the trial was set for March and the complete, certified administrative record was required to be filed before then.

The trial court denied LandWatch’s petition for a writ of mandate and the District sought costs from LandWatch for the cost of preparation of the administrative record, $4,299.01, and preparation of the appendix, $26,922.46. The trial court awarded the entirety of the first amount and half of the second amount, totaling $14,328.59. LandWatch timely appealed.

Relying on Coalition for Adequate Review v. City and County of San Francisco (2014) 229 Cal.App.4th 1043, the Appellate Court held that an agency is not prohibited from recovering costs for preparation of the administrative record where the petitioner initially elected to do so. Such a determination is made on a case-by-case basis and at the court’s discretion.

While the award of such costs is limited to those that are “reasonable” and “reasonably necessary,” so long as the trial court finds that it is not specifically prohibited, it is at the trial court’s discretion to award costs. Here, the Court found that the trial court’s award was “on the low side of reasonable” totaling only $1.77 per page. The trial court would have been “well within its bounds” to award more, especially where the 7,683-page appendix was erroneously requested by LandWatch. Finally, the Court allowed costs for court calls, copies, and transcription costs that were reasonable and not prohibited.

The Court affirmed the trial court award.

Key Point:

Any amount of delay in administrative record preparation past the 60-day limitation in Public Resources Code section 21167.6(b)(1) is “unreasonable delay” in which an agency may prepare the record and recover “reasonable” costs, at the discretion of the court, for doing so.

CARB Regulatory Advisory “Project Approval” Triggers CEQA Review Despite Agency Certified Regulatory Program, Public Testimony Must Be Adequately Addressed to Meet Cal APA Standards

Wednesday, January 31st, 2018

In John R. Lawson Rock & Oil, Inc. v. State Air Resource Board (2018) 20 Cal. App. 5th 77, the Fifth District Court of Appeal found the California Air Resources Board’s (CARB) issuance of a regulatory advisory was “project approval” triggering CEQA review. Doing so prior to completion of environmental review violated CEQA timing requirements. Later, CARB relied on a negative declaration, which the Court also set aside. Further, CARB failed to comply with the California Administrative Procedures Act (CalAPA). As such, the Court directed CARB to comply with CEQA in modifying a set of 2008 regulations known as the Truck and Bus Regulations (Regulations).

CARB issued the Regulations to reduce greenhouse gas emissions from large vehicles by, as pertinent here, requiring vehicle owners to retrofit and upgrade existing vehicles by January 2014. In mid-2013, CARB staff found the global recession substantially reduced trucking activity making compliance with the Regulations financially difficult, especially for those in rural areas and small business settings. CARB responded by delaying reporting deadlines and requesting modification proposals. In November 2013, CARB issued a regulatory advisory stating a handful of modifications to the Regulations would be implemented. Specific changes included: delaying compliance dates, eliminating filter replacement requirements for certain light trucks, and providing a 10-year window where only engines less than 20-years-old would require modernization. After circulating a staff report and proposed modifications in March 2014, CARB issued its final approval in December 2014. Plaintiffs and Respondents filed suit on behalf of fleets that had already incurred significant cost in complying with the unmodified regulations, alleging CARB failed to comply with CEQA and CalAPA requirements.

The Appellate Court found agencies that operate under a certified regulatory program are exempt from certain elements of CEQA review yet still subject to the “functional equivalent” of CEQA environmental review, per the Court’s holding in POET, LLC v. State Air Resources Control Board (2013) 218 Cal.App.4th 681. CARB’s regulatory program requires the preparation of a public staff report at least 45 days before public hearing on a proposed regulation, discussion of environmental alternatives, response to public comment, and compliance with CEQA. Within the regulatory scheme, documents like the CARB staff report are expected to be analyzed and considered before project approval in the same way that CEQA documents are considered.

Applying CEQA principles, the Court determined that project approval triggering CEQA or its equivalent occurred where the regulatory advisory “opened the way” for a project to proceed. CARB conduct following the advisory was “detrimental to further fair environmental analysis.” That the final approval was not to be until 2014 and there was stated CARB authority to change the modifications before that time was insufficient to show the regulatory advisory was not project approval. Language in the advisory that truckers could immediately take advantage of certain programs and the subsequent CARB reliance on the advisory “foreclosed alternatives” to the proposed modifications. Because the advisory was issued before environmental review was complete, CARB failed to comply with CEQA timing requirements.

Next, the Court held the proper baseline for CEQA consideration in this case is the actual environmental conditions at the time of review, not those allowable by the current regulations. As such, CARB acted within its discretion to use a baseline that recognized some trucks and buses were not yet in compliance

Despite this, substantial evidence supported a fair argument that modifications to the Regulations would negatively and significantly impact air quality therefore CARB was incorrect to rely on a negative declaration. CARB failed to address that the modifications, while continuing to decrease emissions in the long term, would increase emissions in the short term. CARB also failed to address the inconsistencies between the proposed project’s emissions and applicable general plans, specific plans, and regional plans.

Notwithstanding these findings, the Court held that the trial court incorrectly directed CARB to prepare an EIR, or its functional equivalent. Such a remedy is only appropriate where the agency no longer has discretion to act in compliance with CEQA. Here, CARB still retained such discretion so the proper remedy is to simply direct CARB to comply with CEQA.

Lastly, CARB failed to comply with CalAPA where it did not adequately address economic impacts to intrastate commerce. While the Court usually gives deference to the agency on determinations of economic impacts, there is no deference for improperly adopted regulations. Here, CARB heard public testimony that relaxing the regulations would impact intrastate competition where those in compliance took on a large expense to be so and others would be able to undercut them. The Court held that testimony, while not written in a formal letter or report, nonetheless put CARB on notice of such issues. While CARB claimed it answered this issue in other comment answers, the Court found that its responses were not supported by any record evidence or meaningful analysis.

Key Point:

A regulatory advisory may be “project approval” triggering CEQA where it forecloses project alternatives therefore environmental review must be complete before its issuance. This standard applies to partially-exempt regulatory bodies and state agencies when their certified regulatory programs are intended to be CEQA-compliant.