Frequently Asked Questions
I, or a group I belong to, am concerned about a proposed development. When should I/we consult an attorney?
You should consult an attorney sooner, rather than later, regarding environmental concerns about a project. Many individuals and groups consult an attorney only after a project is approved and often have legal options foreclosed as a result. The problem is that usually legal grounds for challenging a project cannot be raised in litigation unless some party first raises it before the agency that approves the project. As a result, it is generally very valuable to consult with an attorney during the administrative process. Carstens, Black & Minteer (CBM) frequently prepares comment letters on projects in order to attempt to persuade the decision makers to disapprove or modify a project, and to protect the right of clients to raise issues in litigation if they should so choose. It is also sometimes possible to obtain desired mitigation from the project applicant during the administrative process, but a group is treated more seriously when they are already represented by counsel.
Can I/we represent ourselves during the administrative process?
Yes, but because of the exhaustion of administrative remedies doctrine, it is wise to at least consult an attorney during the administrative process. Also, it is often a good idea to form a group to pool resources and talents, and increase political power. CBM can provide suggestions for forming groups or advise those that have already formed. In court, a group may not represent itself as it can in the administrative process.
What is the role of the California Environmental Quality Act (CEQA) in decision-making?
When there is a discretionary action to be taken by a governmental agency and that action may have a significantly adverse effect on the environment, the agency has to comply with the California Environmental Quality Act (CEQA). Generally, a government agency will have to prepare, circulate for public comment, and approve an Environmental Impact Report (EIR), a Mitigated Negative Declaration (MND), or a Negative Declaration (Neg Dec), though there are certain statutory and regulatory exceptions to the requirement for preparation of such documents. Further, certain environmental protection agencies are not subject to the requirement for preparing EIR’s, MND’s, and Neg Decs, but are still subject to CEQA’s substantive requirements. Though there also may be substantive violations of other laws (local codes, planning laws, Coastal Act, air and water laws, etc.), CEQA often provides a useful tool for challenging a project.
The National Environmental Policy Act (NEPA) also applies when there are projects that involve a federal permit (like an Army Corp of Engineers permit) or federal funding, and of course applies to federal projects that may significantly effect the environment. Environmental Impact Statements (EIS’s) are prepared under NEPA.
If there are a lot of technical issues associated with a project and the environmental review document, what can we do?
We can assist you in identifying experts to critique EIR’s or EIS’s, create a record that an EIR rather than an MND or a Neg Dec should be prepared, and evaluate a project proponent’s application. Sometimes there are people within a community that have expertise on traffic, water quality, engineering, geotechnical issues, biology, and other relevant issues. If the group does not have the necessary expertise, it will likely be important to try to obtain that expertise by securing the assistance of an expert. Obviously, searching the internet may yield a great deal of information that you could put into the administrative record. It is also possible to find records of other project approvals where mitigation measures have been adopted that would significantly reduce the impact of a project. The adoption of such measures is evidence that the measures are feasible, and thus should be included in the record with as much detail as is available.
Regardless of the amount of time people may be willing to research an issue, it may be important to obtain an expert that can review agency documents, including an EIR where the issue is very technical. It may be useful to go to local universities and colleges, or local environmental groups to see if they can provide assistance, but in some cases the only option is to hire an expert. CBCM maintains a list of experts that have been willing to critique MND’s and EIR’s. When any expert submits comments, it is important to include the expert's resume or credentials.
Finally, persuading other agencies, such as the Department of Fish and Wildlife, water and air quality agencies, Caltrans and other state or local agencies, including water districts, to comment on an EIR, MND or Neg Dec is very important, as the courts tend to give considerable weight to the comments of other agencies.
LITIGATION IN STATE COURT
If a project is approved, how much time do we have to sue?
If the action involves a challenge under CEQA, an action must be filed very quickly, generally within thirty days of the filing of a document known as a "Notice of Determination." When an exemption from CEQA is claimed, the time period is 35 days. If a local agency is the approving agency, the Notice is filed with the County Clerk, and for a State agency, with the State Clearinghouse.
If no CEQA action is appropriate because the CEQA review is adequate, but a challenge to the legality of another action is appropriate, different statutes apply, but most also have a fairly short time limit. For example, an allegation of a violation of a local code, general or specific plan, or Subdivision Map Act must be filed within 90 days. Challenges to actions of the Coastal Commission not involving CEQA challenges (but most challenges do) likewise must be brought within 60 days. Other statutes or ordinances have other deadlines for filing. These deadlines are called the statute of limitations for the action.
How do we know whether a suit should be filed?
If time permits, CBM normally recommends that it prepare a written evaluation of the case before filing so that a client can make an informed decision about whether the investment in the litigation is warranted. Of course, to some extent the judge who receives the case will affect the evaluation of the likelihood of prevailing, but that is not known at the time an action is filed. Also, any party that files an action has one “peremptory” challenge, which means that a party may challenge one judge without specifying cause, thus allowing avoidance of a judge that may be hostile to environmental claims.
Will filing the suit stop the project?
No, not necessarily. If there is a threat of imminent harm being done as a result of proposed grading or construction, or other physical activity on site, either a stay of the permit or a temporary restraining order (TRO), followed by a preliminary injunction, must be sought. However, only very rarely do project proponents attempt to proceed during litigation, because they do so at their own risk, and it is also often difficult for them to get funding while a legal action is pending.
How long will the litigation in the Superior Court take?
A petition for a writ of mandate is litigated far more quickly than a typical civil case. No jury is involved, and the judge is the trier of fact and makes the legal determinations.
CEQA has within it various statutory time frames for bringing a matter to hearing. With all of the statutory deadlines, a hearing on a CEQA case normally occurs within nine months to a year of the filing of the petition, but can be decided in less time.
What happens after the trial court decides the case?
Either side can appeal a decision of the trial court to the Court of Appeal. In the majority of the cases that CBM handles, the matter is heard "de novo," meaning the Court of Appeal will hear the matter as if there were not a decision by the trial court.
How long does an appeal take?
If a CEQA matter is involved, the matter will have preference on the civil calendar. How long it takes depends upon the workload of the court, but normally the matter is heard in less than a year of the filing of the notice of appeal, and sometimes much sooner. Like the trial court, a court of appeal has 90 days to decide a matter.
What happens after the Court of Appeal’s decision?
Unlike the right to review of the decision of a trial court, review by the California Supreme Court of a Court of Appeal decision is entirely at the Supreme Court’s discretion, after the filing of a petition for review. The Supreme Court’s role is not to right any wrong done by the Court of Appeal, but rather to clarify the law. Therefore, a decision is more likely to be reviewed if the opinion of the Court of Appeal is published and involves important questions of law or conflicting court of appeal decisions. Many Court of Appeal decisions are not published, making it more difficult to obtain review. Only a very small percentage of petitions for review are granted (often estimated at 5%).
Does the Firm handle litigation in federal court?
Yes, although our practice in federal court is less frequent than in state court, we also handle federal cases, including those pursuant to the National Environmental Policy Act (NEPA), the Clean Air Act, the Clean Water Act, and the Endangered Species Act. Federal court litigation requirements are significantly different from state court requirements.
LEGAL FEES AND COSTS
What kind of a financial commitment is required for your firm to represent me or my group?
Like snowflakes, no two cases are alike. CBM tries to arrange our fee structure to meet the circumstances so that both the clients and the firm are satisfied. CBM is often able to take matters where the client is responsible for fees calculated at a reduced fee basis, substantially below customary market rates for attorneys of Carstens, Black & Minteer’s experience and expertise. The exact hourly rate at which CBM will agree to represent an organization depends on a number of factors, including the likelihood that it would recover our market rate fees from the opposing party if the firm prevails in litigation.
Attorneys’ fees can be recovered under California law if a party prevails and the matter results in enforcement of an important right affecting the public interest, the action confers a significant public benefit, and the financial burden of private enforcement, compared to private gain, makes an award appropriate. Some federal laws, including the Clean Water Act, Clean Air Act, and federal Endangered Species Act, have attorney fee provisions. For actions under statutes that do not contain fee provisions, such as the National Environmental Policy Act, fees may be awarded under the Equal Access to Justice Act. However, under federal law there often is a concern that an agency may comply with the law after the filing, and attempt to evade an award of fees.
Under most circumstances, the client is reimbursed for the money that they have paid for legal services if CBM obtains its market rate after prevailing in the litigation or settling the matter.
OTHER POSSIBLE COSTS OF LITIGATION
Can we be sued by the developer or landowner for objecting to a project, or filing a lawsuit to stop the project?
Lawsuits are very rarely filed against project opponents, but such suits have occurred. California law provides a privilege for communications, including lawsuits, involving matters of public interest. The law also provides methods by which any suit based upon a challenge to a project may be quickly resolved. Suits that are brought because of actions such as opposition to a project are called SLAPP suits, standing for Strategic Litigation against Public Participation.
In California, the legislature recognized that defendants bring actions against plaintiffs in retaliation for the plaintiffs suing to enforce state law, and passed a law to protect plaintiffs against these suits by giving those plaintiffs participating in matters of public significance a means of quickly disposing of the case. If there is a suit against CBM’s clients, and there is no reason to believe the clients have done anything improper, the firm would generally be willing to represent the clients in the defense of such a SLAPP suit, through an anti-SLAPP motion, with no charge for fees, as recovery of fees from the party bringing the challenge would be expected.
Can we be required to pay the costs of the opposing counsel if we lose?
Petitioners are not liable for opposing counsel’s attorneys’ fees, except in very extraordinary circumstances, such as when a filing is clearly frivolous. CBM does not file actions that it believes could be characterized as frivolous. One limited exception to the general rule that petitioners are not liable for opposing counsel’s fees is where sanctions are imposed because of egregious actions by counsel. This has never occurred in any of our cases.
Are there other costs of litigation of which we should be aware?
A petitioner in a writ case must pay the costs of preparation of the administrative record for the court. Further, if a petitioner is unsuccessful in litigation, they do have to pay certain statutorily established costs, including filing fees, the costs of service of process, the costs of transcripts ordered by the court, and models and blowups determined by the court to be reasonably helpful to its decision.
NOTICE: These materials have been prepared by Carstens, Black & Minteer LLP for informational purposes only and are not legal advice. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship. Internet subscribers and online readers should not act upon this information without seeking professional counsel. The information contained in this web site is provided only as general information that may or may not reflect the most current legal developments. This information is not provided in the course of an attorney-client relationship and is not intended to constitute legal advice or to substitute for obtaining legal advice from an attorney licensed in your state. This web site may be considered advertising under applicable laws and ethical rules.