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November 16, 2011

AB 320 Shifts Burden of Naming Real Parties in Interest from CEQA Petitioners to Lead Agencies

AB 320 Shifts Burden of Naming Real Parties in Interest from CEQA Petitioners to Lead Agencies

By Andrea A. Matarazzo

A new law signed last month by Governor Brown will make it easier for CEQA litigants to avoid a procedural mistake that can cost them their day in court.

Plaintiffs in civil cases typically bear the burden to determine whom to sue for the relief they seek, and CEQA petitioners seeking a writ of mandate know that they should sue the public agency responsible for the action at issue.  More complicated, however, is the requirement to name “real parties in interest” – those parties, such as applicants, whose rights may be affected by the outcome of the CEQA suit and therefore are entitled to participate in the litigation.  Under Public Resources Code section 21167.6.5, failure to name the proper real parties in interest in a CEQA case can lead to dismissal of the action if the court determines that the overlooked parties are “indispensable” (see Code of Civil Procedure section 389) to the issues involved.

AB 320 shifts the burden of naming real parties in interest from CEQA petitioners to lead agencies by requiring that when a project is approved, the agency’s Notice of Determination (NOD) or Notice of Exemption (NOE) now must identify the real parties in interest.  (Pub. Resources Code, §§ 21108, subds. (a) and (b); 21152, subds. (a) and (b).)  Petitioners must name the identified parties in their CEQA suit; failure to name any potential party other than those identified in the NOD or NOE will not be grounds for dismissal.

These new requirements do not apply to CEQA suits filed before December 31, 2011, nor to CEQA actions for which an NOD or NOE was filed on or before December 31, 2011.

Authored by:

Andrea A. Matarazzo

(916) 496-8500

(916) 737-5838 (Direct)

andrea@pioneerlawgroup.net

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