SACRAMENTO — The emergency rules the Judicial Council of California enacted due to COVID-19 could have unforeseen effects on petitions involving the California Environmental Quality Act (CEQA).
Nick Cammarota, senior vice president and general counsel of the California Building Industry Association, said CEQA is the primary reason why housing projects get challenged.
"They’re fairly easy to win," Cammarota said in an interview with the Southern California Record. "Attorneys will take them on contingency because they’re easy to win. And then if they win, which they’re likely to do according to the studies we’ve seen, then they can recover attorney's fees, including multipliers on those fees."
Cammarota said the statute of limitations is typically between 30 and 35 days. If someone proceeds with a project within those 30 to 35 days, they do so at their own risk because some judges have ordered construction projects torn down in the past.
"Some people are unwilling to begin construction until those 30 or 35 days have passed," Cammarota said. "Obviously they don’t want their projects torn down."
However, because of the council's new emergency rules, that began April 6, even if the statute of limitations was about to expire, the council made it so the statute of limitations on CEQA cases is extended.
"Until the state and local emergency orders are lifted, then you get 90 days from the lifting of those dates," Cammarota said. "So we have to wait for the emergency to be lifted, and no one knows what constitutes that — if there is going to be a progressive reopening, or if it is the initial reopening or the end — no one knows."
Ninety days is three times the normal statute of limitations.
"During all this time, projects can't be moved forward, even in areas where construction was deemed essential," Cammarota said.
He believes that when the council made its changes for the emergency rules, it was undoubtedly thinking of garden-variety complaints and not things like CEQA.
"In regards to these types of claims, (we hope) that they reconsider and provide some sort of distinction between these claims and garden-variety civil actions that they had in mind when moving forward with this," Cammarota said. "If they want to delay prosecution in the case, that’s fine as well, but it’s the initial filing that’s the problem."
Cammarota said projects will have to wait much longer due to the extension.
"The overwhelming majority of these folks bringing these claims are not truly doing it to be something good for the environment," Cammarota said. "They’re using it for other purposes — whether it’s ‘I just don’t want this project moving forward period’ or they're a labor union wanting to extort a project labor agreement or maybe a business competitor."
Cammarota said the delay and the stalling that happens during the litigation process is part of the leveraging to get what they want. "What we think is unfair is that we can't even know who is going to be bringing a lawsuit until the statute of limitations has expired," he said.