Would Bill Have Had Relevance to Nishi Lawsuit?
By Leanna Sweha
AB 2026 had its first and only hearing yesterday in the Assembly Natural Resources Committee.
The purpose of AB 2026 was to address the growing problem of CEQA lawsuits filed by organizations that conceal the identities of those actually funding the lawsuit.
The bill would have required a plaintiff in a CEQA lawsuit to disclose the identity of any donor who gives more than $1,000 to help pay for the lawsuit. It also would have required the plaintiff to disclose the financial interest of the donor related to the project that is the subject of the lawsuit.
Author Assemblyman David Hadley (R-Torrance) stated that AB 2026 was in keeping with CEQA’s goals – to bring transparency in decision making about a proposed project’s effect on the environment.
The bill supporters cited a 2013 report that reviewed 95 published California appeals court decisions over 15 years in CEQA cases dealing with the adequacy of a project’s Environmental Impact Report (EIR). The report found that 73% of such lawsuits were filed by local organizations, of which almost half were unincorporated associations that are not required to disclose their members in CEQA lawsuits. The report concluded that a significant amount of CEQA litigation is initiated by anonymous unincorporated entities that are special interests like business competitors and labor unions seeking non-environmental outcomes.
One of the reasons plaintiffs with non-environmental interests can sue under CEQA is its relatively loose standing requirements. Although CEQA deals with impacts on the environment, plaintiffs do not have to allege an environmental harm.
Consider that, if AB 2026’s disclosure requirements had already been law, we might have greater transparency in the CEQA challenge of the Nishi Gateway Project.
The lawsuit filed by attorneys Michael Harrington and Don Mooney in March alleges that the City of Davis and the city council improperly approved the Final EIR. The plaintiff in the case is Davis Citizens Alliance for Responsible Planning (CARP), which is represented by Nancy Price, a former city planning commissioner.
CARP appears to be an anonymous unincorporated entity that was not required to name its members in its lawsuit. Other than Ms. Price, we don’t know who its members are, nor do we know who are the persons actually funding the litigation or their financial interests in the project. If AB 2026 were law, the plaintiffs would have to name donors of over $1000 to the lawsuit as well as their financial interests in the project.
AB 2026 also would have allowed courts to consider the identities of CEQA lawsuit financers when deciding whether to award attorneys’ fees to plaintiffs. Under the state’s private attorney general doctrine, a court may award attorney fees to plaintiffs if a CEQA lawsuit results in enforcement of an important right affecting the public interest, if a significant benefit is conferred on the general public, and if the necessity and financial burden of private enforcement makes the award appropriate. AB 2026 would have allowed the court to take donor information and interests into account when deciding if an award of fees is appropriate.
Assemblyman Hadley argued that CEQA reform is necessary and would help with issues like housing affordability and infrastructure repair. He noted that one clear sign of the need for CEQA reform are several recent CEQA “exemption” laws for important or politically connected projects – like the 2013 law that limited CEQA review of the Kings arena project.
Bill opponents testified that AB 2026 would dismantle CEQA and was an attack on free speech and association. They argued that the disclosure rules would add an extra burden that would dissuade groups from forming to challenge projects under CEQA, because members may not want the local community to know their identity.
The bill failed 4-3 on what appeared to be a party line vote.
Leanna M Sweha, JD, has been a resident of Davis for 20 years. As a young molecular biologist in a USDA lab working to engineer Roundup-resistant corn, she grew interested in sustainable agriculture. Fascinated with the legal and policy issues of agricultural genetics, she became an attorney specializing in agricultural and natural resources law. She has worked for the California Resources Agency and the UC Davis Office of Research.