Last minute legislation threatens public’s right to know impacts of projects

The California Environmental Quality Act, commonly known as CEQA, has been a critical tool to assure that the public gains access to information about proposed projects that may significantly impact the environment. A so-called “trailer bill” (which is not subject to the review normally accorded legislation) was released on May 19 by Gov. Gavin Newsom – part of a last minute effort to push through a package of 11 CEQA reform bills this year.

Ostensibly part of the Governor’s “infrastructure” plan, the bill takes aim at CEQA’s disclosure requirements – particularly as to internal agency emails, overturning Golden Door, an appellate case that assured that an administrative record includes internal agency communications about a project. The bill would amend CEQA to expressly exclude from the administrative record “staff notes,” as well as any “internal agency electronic communications, including emails that were not presented to the final decision-making body.” Administrative Record Reform, Draft Trailer Bill Language, May 19, 2023. Since few internal emails are ever presented to decision makers, the bill would remove from CEQA records virtually all internal emails that agencies are currently required to produce. This represents a major change to CEQA – and a misguided one.

Under CEQA, emails are currently part of the administrative record reviewed by the public and ultimately by a court if there is a challenge to a project. A CEQA record must include, in addition to environmental impact reports and other publicly released documents, “all internal agency communications, including staff notes and memoranda related to the project.” Public Resources Code §21167.6, subd. (e)(10).

This requirement has been critical to ensuring transparency and accountability in governmental decisions that impact the environment. As explained in the recent decision in Golden Door Properties LLC v. County of San Diego, which held that internal emails relating to CEQA projects must be retained by the agency, CEQA’s record requirements are consistent with its core purpose, which is to allow the public to “know the basis on which its responsible officials either approve or reject environmentally significant action … The EIR process protects not only the environment but also informed self-government.” Golden Door Properties, LLC v. Superior Court (2020) 53 Cal.App.5th 733, 763, quoting Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 392.

Internal emails provide information that can be crucial to understanding how and why conclusions in environmental documents were reached, and whether those conclusions are credible. As Golden Door noted, email is used not just to communicate brief, non-substantive messages, but, “especially combined with the ability to attach documents, is also used to communicate important information previously sent by mail or private delivery service.” Golden Door, 53 Cal.App.5th at 772. Internal emails often provide important insights into the relationship between project applicants, consultants and government staff, and can offer a window into the environmental analysis done by expert agency staff. Internal emails are often critical in revealing improper agency conduct.

In a recent case, the California Department of Fish and Wildlife (CDFW) hid from the public the fact that the massive flood levees proposed at the Ballona Wetlands under the guise of “restoration” would be even bigger and more massive than was stated in the draft Environmental Impact Report. Grassroots Coalition et al. v. California Department of Fish and Wildlife (2023) Superior Court of California, County of Los Angeles. Absent the transparency gained by requiring that internal communications be included in the record, the impacts to precious coastal freshwater wetlands would have continued to be understated by CDFW, depriving the court and the public of essential information in deciding the fate of these wetlands.

The trailer bill does not merely prevent CEQA petitioners from discovering internal emails. It would also give agencies unfettered discretion to include in the record whatever internal emails they so choose. In other words, it would provide agencies with a license to cherry-pick: an agency could load the record with internal emails that support its position, and exclude those that undermine it. Golden Door warned of this precise danger, explaining that allowing agencies to delete emails “would enable an agency to prune the record by deleting unfavorable internal agency communications, including staff notes and memoranda related to the project. However, existing law prohibits a lead agency from picking and choosing who sees pertinent data.” Id. at 765 (internal quotations and citations omitted).

On top of that, the bill would dramatically increase the risk that someone bringing a CEQA challenge would be forced to incur costs of preparing the record that are completely beyond that party’s control. In a CEQA case, the losing party is responsible for paying the costs of record preparation, which can be quite substantial for a large record. Few petitioners would be willing to file a lawsuit if they bore the risk of paying the record preparation costs claimed by the respondent agency. CEQA currently mitigates this risk by giving petitioners the right to prepare the record themselves if they so choose. The trailer bill would limit that right, giving agencies the ability to seize back control of record preparation if petitioners cannot complete the task within 60 days of receiving the record documents from the agency – a timeframe that an agency could easily frustrate if its initial document production is incomplete or disorganized.

The purported goal of the trailer bill is to speed the record preparation process and reduce its costs. But there are ways to achieve this goal without gutting CEQA’s purpose of providing transparency and accountability. The State could provide local governments and other agencies with technical and financial assistance designed to streamline and standardize methods of record preparation, with a goal of getting agencies across the board to produce records concurrently with the CEQA review process itself. Such an approach would produce enormous efficiencies and cost savings for agencies and petitioners alike, and would have the added benefit of enhancing transparency throughout the CEQA process.

Just recently, the Senate budget committee voted down the Governor’s attempt to fast-track his CEQA reform package, but the fate of the administrative record trailer bill this year remains uncertain. The legislature should not revive it in its current form. A genuine effort to streamline and reduce the cost of producing a CEQA record would certainly be welcomed by the public. But the State should not sacrifice CEQA’s core purpose of open governmental decision-making in this manner, with little public participation and without the normal legislative deliberation.