TPR Roundtable: Consultants and EIR’s

Allan J. Abshez, attorney specializing in real estate and land use law at the law firm of Latham & Watkins.

In my view, applicants should be permitted to participate in the preparation of EIR’s for their projects, both because it is permissible under CEQA (at least under other decisions to date) and because it works. The process entails a delicate system of checks and balances. The public’s interest must be protected by a lead agency’s oversight and final textual and editorial control of the EIR document, which, after all, must represent the decision­maker’s independent environmental analysis. But the applicant has interests that should be protected as well.

Applicant involvement helps to drive the EIR process forward, because no one has a greater interest in getting through the process in an expeditious and orderly fashion. Applicant involvement similarly helps to increase the legal and analytical defensibility of an EIR, because no one has a greater interest than does the applicant in ensuring that a project approval stands up.

Anthony H. Barash, partner in the Los Angeles law firm of Barash and Hill.

The La Vina decision correctly reflects the requirements under CEQA and I believe underscores that the necessary allegiance of the consultants should be the decisionmaker, not to the applicant or the developer. I think it recognizes that there is an inherent conflict of interest when the agency permits the applicant to hire the consultant to prepare the EIR.

The implications, I think, are very straightforward. Agencies are going to have to develop the capacity either in-house or through consultants to prepare EIR’s that preserve the appropriate balance of allegiances and mitigate the potential for abuse.

Linda J Bozung, a land-use attorney with Jones. Day, Reavis and Pogue in Los Angeles.

The problem with the La Vina decision is that developers and developer’s counsel in California are already beginning to be closed out of the EIR preparation process. Cities and Counties are moving toward working only with the EIR consultant during the preparation stage of the document without soliciting (or permitting, in some case) the advice or input of the developer. As a result, the draft document will often be inaccurate, requiring corrections that are costly in terms of both time and money to the developer as well as the public agency.

Finally, the court suggests that because the consultant is paid by the developer, the document will be biased. This conclusion ignores the complete oversight and involvement of the public agency in the process, and the fact that the EIR is the public agency’s document to defend. More importantly, public agencies will never fund these documents; the expense is always passed on to the developer and that reality will not change as a result of this decision.

Deborah Bucksbaum, an attorney with the firm Proskauer, Rose, Goetz & Mendelsohn, represented the plaintiffs in the La Vina case.

The Court’s ruling is based on clear language in the California Environmental Quality Act (CEQA) requiring environmental impact reports (EIRs) to be prepared by local governments or their hired consultants. Accordingly, the ruling is not a surprise. Common sense dictates that EIRs prepared by project proponents or their hired consultants are tainted by an inherent conflict of interest.

There is no precedential authority that is contrary to the La Vina ruling. Los Angeles County’s attorneys have cited court decisions on whether the challenged local government performed independent analysis and review of environmental issues. That is a very different question from whether CEQA allows project proponents or their agents to prepare an EIR.

To comply with CEQA, a local governmental agency must prepare its own independent EIR, either with its own internal resources or by hiring an independent environmental consultant. Of course, the agency is entitled to accept information and data from project proponents, but it may not rely exclusively on such information. The agency, or its consultant, must determine for itself the degree of accuracy and completeness of such material, and obtain whatever additional data it may need.