Interviews October 5, 2012

Land Use Partner Ed Casey: Five Questions on CEQA

Ed Casey, partner in Alston & Bird’s Los Angeles office, represents a variety of residential, retail and commercial developers in land use matters, including those arising under the California Environmental Quality Act (CEQA). His practice encompasses every facet of the entitlement process, from pre-acquisition due diligence to permitting, and he has successfully prosecuted and defended CEQA and other land use lawsuits for a number of major development projects.

Casey was recently featured in the Los Angeles Daily Journal as part of the “Top 100 Lawyers in California” for his role in representing the developer Playa Capital Co. LLC in the second phase of its project—the largest mixed-use project in the Westside of Los Angeles comprised of 2,600 residential units and 150,000-square-feet of commercial space.

He recently entertained questions regarding CEQA’s impact on California development, as well as trends he has observed in the course of his very successful work in this field.

 

How has CEQA impacted residential and commercial development in California?

Ed Casey: The California Environmental Quality Act (CEQA) has impacted West Coast development in a couple of distinct ways. CEQA requires a detailed review of the potential environmental impacts that can be caused by a proposed development, infrastructure or other type of project. While laudable in its purpose, the statute has been historically abused by groups seeking to block a project at all costs, including litigation. Therefore, projects are taking much longer to complete, with many projects taking years to just complete the environmental review process. That increases development costs, as well as increases uncertainty during the permitting process—which, in turn, makes financing more difficult to secure. Thus, developers are allocating more money for consulting fees and attorneys’ fees.

What are the biggest challenges in handling CEQA litigation?

Ed Casey: CEQA litigation differs from traditional litigation in several areas. For example, all that is included in the administrative record—there is no discovery, no witness testimony and no trial by jury. So, being involved in the permitting process when the administrative record is still open and being developed is critical to success in future litigation. Also, decisions are made solely by CEQA “specialty” judges, who are designated on a county-by-county basis. Familiarity with the judges is key. Finally, if the plaintiffs prevail, they are entitled to attorneys’ fees, but if defendants are victorious, there is not a mechanism to recoup their counsel’s fees from the plaintiffs. The likelihood of litigation is therefore heightened.

Is there any difference between private and public development projects?

Ed Casey: Though, under the statute, CEQA doesn’t recognize a difference in claims brought against a private project versus a public project, there is a subtle but important distinction in terms of how the entities are viewed in court. Public agency projects are often viewed through a more positive lens—the assumption being that the agency is looking out for the best interests of the community. On the other hand, some courts may view the intentions of private developers in a different light and hold them to a higher standard of compliance with CEQA.

Have you observed any trends?

Ed Casey: We have noticed two competing trends related to CEQA. On one hand, we are seeing an increased number of claims related to new “cutting-edge” environmental issues, such as global warming. These environmental concerns often reach far beyond an individual development project, but CEQA plaintiffs argue that environmental review for such projects must still analyze both the project’s contribution to the problem AND how to fix the global problem.

The other trend we’ve witnessed is some pushback from both the trial and appellate courts on the scope of CEQA and its misuse by some groups. In fact, judges are starting to be straightforward in questioning a plaintiff’s motive and asking them point-blank what they hope to achieve by bringing a CEQA claim—is there a legitimate basis for the claim or is plaintiff’s counsel just rolling the dice and hoping for a fee award?

What is the secret behind your success?

Ed Casey: First and foremost, these cases are often complex and document-intensive, which requires a team approach. Alston & Bird has a group of experienced attorneys who have worked in the land use and CEQA field for many years, and we understand the unique processes involved in CEQA litigation and are also familiar with the mindset of the CEQA judges. Being able to anticipate and plan accordingly for the types of questions the judges will ask based on previous experience in front of them is crucial to formulating an effective litigation strategy. In terms of the pre-litigation phase, being able to assist clients in navigating the permitting process has also been a key to, in some cases, both avoiding permitting landmines, as well as avoiding litigation altogether.

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Nicholas Clarke
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