Public Interest Standing Under Ceqa: Will We Ever Know What Types of 'urgent Considerations' Outweigh a Petitioner's Standing?

• Jurisdiction: California,United States
• Author: by Jonathan E. Shardlow and Martin P. Stratte
• Publication year: 2017
• Citation: Vol. 26 No. 1

Public Interest Standing Under CEQA: Will We Ever Know What Types of 'Urgent Considerations' Outweigh a Petitioner's Standing?

by Jonathan E. Shardlow^* and Martin P. Stratte^**1

"Reform of CEQA is the Lord's work, but unfortunately the Lord's work doesn't always get done."²

—California Governor Jerry Brown

The California Environmental Quality Act ("CEQA") is a self-executing statute that requires state and local agencies to identify the environmental impacts of their actions and to avoid or mitigate those impacts, if feasible.³Because CEQA is a self-executing statute, state and local agencies are entrusted with the responsibility of complying with CEQA, and enforcement occurs through public litigation.⁴

Since the inception of CEQA in 1970, California courts have analyzed the scope of a CEQA petitioner's duty to establish a sufficient "interest" in the underlying subject matter of an action (i.e., how a petitioner may establish standing). Over the years, the doctrine of "public interest standing," also referred to as "citizen standing," has emerged as the standard method through which CEQA petitioners establish standing.

What has not emerged, however, is a meaningful analysis of scenarios under which a court may choose to deny a petitioner's claim of public interest standing, despite the existence of legal precedent that appears to grant courts the authority to make such a ruling. This lack of clarity has largely contributed to what many perceive as the abuse of CEQA litigation for commercial and anti-competitive purposes.⁵

This article examines scenarios from CEQA cases that, in the opinions of the authors and many local agencies and developers, demonstrate the need for guidance as to whether, if ever, a petitioner's claim of public interest standing can be denied, or, at the very least, subjected to reasonable discovery.

I. BACKGROUND AND AUTHORITY

A. The "Beneficial Interest" Requirement and the "Public Interest" Exception

A CEQA action is typically brought as a petition for writ of mandate filed pursuant to Code of Civil Procedure Section 1085 or 1094.5. To file a petition for writ of mandate, a petitioner must establish a "beneficial interest" in the action.⁶ A "beneficial interest" is generally defined as "some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large."⁷ However, over the years, courts established an exception to this standard that is often referred to as "public interest standing."⁸

Under "public interest standing," if an action seeks to compel the enforcement of a public right or duty, such as CEQA, a petitioner need not show a "beneficial interest" to establish standing. Rather, a petitioner simply needs to show an interest in the enforcement of a public right or duty.⁹ Moreover, under public interest standing, a petitioner's "geographical nexus can be attenuated, for instance beyond the city lines, because '[e]ffects of environmental abuse are not contained by political lines.'"¹⁰

As the public interest exception became the standard method through which CEQA petitioners established standing, litigants questioned whether the exception also applied to corporations. Such inquiries were often founded on suspicions that CEQA actions had been filed for commercial or anti-competitive purposes.

Furthermore, because the public interest exception did not require a rigid "geographical nexus," some raised the specter that corporations or unincorporated organizations could be used to cloak the true identities of the individuals responsible for a lawsuit.

B. Corporate Public Interest Standing

In 2000, the California Court of Appeal, Third District, published its opinion in Waste Management of Alameda County, Inc. v. Alameda County 79 Cal.App.4th 1223 (2000) ("Waste Management"), which examined, among other issues, a corporate CEQA petitioner's ability to establish the requisite standing under both the traditional beneficial interest standard, and the public interest exception.

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The petitioner, Waste Management of Alameda County, Inc. ("petitioner"), filed a CEQA action that challenged the approval of a permit to operate a solid waste facility in Alameda County. The permit was issued to real party in interest, Browning-Ferris Industries of California, Inc. (real party), a competitor of the petitioner. The trial court found in favor of the petitioner and issued a writ of mandate instructing the approval of the permit to be set aside.¹¹

On appeal, the real party challenged the petitioner's standing to file a CEQA action, and alleged that the petitioner filed the action for commercial and anti-competitive purposes.¹²

In reviewing the petitioner's claim of standing under the traditional beneficial interest standard, the Court of Appeal found that the standard had not been met. Specifically, the Court found that the petitioner's "commercial and competitive interests are not within the zone of interest CEQA was intended to preserve or protect and cannot serve as a beneficial interest for the purposes of the standing requirement."¹³

Next, the Court turned to the question of whether the petitioner could establish standing under the public interest exception (aka "citizen standing"), which the Court noted was "an exception to, rather than a repudiation of, the usual requirement of a beneficial interest."¹⁴ In its analysis, the Court explained that although a corporation could establish standing under the public interest exception, the corporation has a heightened burden to demonstrate "the strength of the nexus between the artificial entity and human beings and the context in which the dispute arises."¹⁵

Based on the evidence in the administrative record, the Court of Appeal found that the petitioner had "failed to demonstrate that it should be allowed to pursue a citizen's action."¹⁶ The Court added that the petitioner "has shown no demonstrable interest in or commitment to the environmental concerns which are the essence of CEQA; rather, it is pursuing its own economic and competitive interests."¹⁷

Based upon the petitioner's lack of standing, the Court of Appeal reversed the trial court's findings, and remanded the matter with directions to dismiss the action. In closing, the Court explained that:

Throughout these proceedings, it has been apparent Waste Management is a for-profit corporation which has been pursuing this action for commercial and competitive purposes. A corporation cannot be condemned for pursuing its own economic interests, but indirect financial interests are not an environmental interest sufficient to establish standing to pursue a CEQA action against a competitor. Having reviewed its claims, we conclude the action should have been dismissed because Waste Management has not established standing to pursue the relief requested.¹⁸

1. Regency Outdoor Advertising, Inc. v. City of West Hollywood (2007)

In 2007, the California Court of Appeal, Second District, published its opinion in Regency Outdoor Advertising, Inc. v. City of West Hollywood 153 Cal.App.4th 825 (2007) ("Regency"), which denied a CEQA action filed by a corporate petitioner. The opinion was largely based on the Waste Management holding.

The petitioner, Regency Outdoor Advertising, Inc. ("petitioner"), filed a CEQA action that challenged an ordinance that imposed limitations on wall signs located on buildings within the City of West Hollywood. The petitioner sought to invalidate the ordinance because it had not been subjected to environmental review under CEQA.¹⁹

While the matter was pending, the trial court sua sponte directed the parties to brief the petitioner's right to standing in accordance with the Waste Management holding. Thereafter...