By Matthew Hinks
Effective environmental review of a real estate development project under the California Environmental Quality Act (“CEQA”) often requires that the approving agency and representatives of the developer work together collaboratively to ensure that environmental review is carried out according to the dictates of the law. However, doing so raises the question of the protectability of communications shared between the developer, the CEQA lead agency and their lawyers. Communications between an attorney and his or her client are privileged and are therefore not subject to disclosure as part of the discovery process or the administrative record in CEQA litigation. But what about in situations where communications take place or are shared among a developer, a lead agency and their lawyers?
A new California Court of Appeal opinion — Citizens for Ceres v. Superior Court — offers a new answer to that question, which will have significant practical implications for property owners and developers engaged in the CEQA process. However because the opinion appears to conflict with a prior Court of Appeal opinion, it is unclear how the rule announced by the Ceres court will get applied in future litigation. Moreover, there is significant question as to whether the Ceres rule will get applied outside of the CEQA context.
Attorney-Client Privilege and the Common Interest Doctrine
Many jurisdictions, including courts in the Ninth Circuit, recognize a “joint defense privilege” — i.e., a privilege to refuse to disclose communications among multiple clients and their lawyers who have a shared interest in actual or potential litigation against a common adversary. The joint defense privilege allows litigation co-parties and their lawyers to share communications in aid of their common litigation cause without having to disclose the contents of those communications to opposing parties.
California, however, is not one of those jurisdictions. Privileges in California are created by statute and courts are not authorized to create new privileges. Moreover, there is no statutory joint defense privilege. Nevertheless, a functionally similar form of the privilege is recognized by California courts in a concept of “non-waiver.” That is, whereas sharing lawyer-client communications with a stranger to that relationship normally results in waiver of the attorney-client privilege, waiver will not be found where the third party shares a common interest with the represented party and the disclosure is necessary to accomplish the privilege holder’s purpose in securing the lawyer’s advice.
The Common Interest Doctrine and the CEQA Process
Applying these principles to the CEQA process, the Ceres court divined a bright-line rule recognizing a common interest between a developer and a CEQA agency once the environmental document has been approved and is being challenged by a project opponent. No common interest, however, can exist prior to project approval:
In our view, the lead agency’s obligation not to commit to the project in advance, but instead to carry out an environmental review process and create environmental documents that reveal the project’s impacts without fear or favor, and only then make up its mind about project approval, means the agency cannot have an interest, prior to project approval, in producing a legally defensible EIR or other environmental document that supports the applicant’s proposal. At the same time, of course, the applicant’s primary interest in the environmental review process is in having the agency produce a favorable EIR that will pass legal muster. These interests are fundamentally at odds.
Thus, according to the court, once a project has been approved and the environmental document certified, the lead agency, the developer and their lawyers may share communications as part of a joint effort to defend the project and environmental from legal challenges posed by project opponents without fear of having to disclose those communications to litigation adversaries. Such communications, however, occurring before approval would be subject to disclosure either as part of the administrative record or in subsequent legal proceedings.
Thoughts on the Court’s Opinion
One might argue that the court’s opinion overstates the divergence in the interests of a project opponent and lead agency in many cases leading the court to recognize a less robust privilege (or, more accurately, a more robust concept of waiver) than is justified given the contours of the common interest doctrine. Nevertheless, there is value in setting clear rules, even for those that would benefit by a more expansive privilege. Bright line rules promote certainty and discourage litigation. Following the Ceres rule, a developer can be confident that post-approval communications with a lead agency can be protected from disclosure from a common adversary, while pre-approval communications cannot.
Nevertheless, two important questions remain after Ceres. As indicated above, the Ceres holding seems to conflict with a prior decision — California Oak Foundation v. County of Tehama, 174 Cal. App. 4th 1217 (2009) — which arguably stands for the proposition that pre-approval communications may be protected from disclosure by the common interest doctrine. Thus, the certainty provided by the Ceres rule may be undermined should a lower court deem that the California Oak opinion provides the applicable rule of law. California Supreme Court review may be necessary to address the potential conflict.
Moreover, it also remains to be seen whether the Ceres rule gets applied outside of the CEQA context. For example, does the pre-approval/post-approval distinction apply in cases where a developer is defending jointly with an agency or municipality the issuance of a conditional use permit in litigation brought by a project opponent? Does it apply where an agency or municipality is defending litigation cooperatively with a project opponent brought by an aggrieved developer after a project has been rejected?
Whatever the answer to these questions may ultimately be, the Ceres opinion — because it addresses an issue that has everyday, practical implications — will have lasting impact in litigation surrounding land use entitlements.
Matthew Hinks is a litigator with a wide-ranging practice that focuses primarily on the representation of real estate developers in difficult land use cases. Matt has extensive experience litigating complex mandamus actions and other claims involving signage disputes, governmental takings, CEQA challenges, planning and zoning law, civil rights violations, eminent domain issues, title disputes, lease disputes and community redevelopment and density bonus law. He has extensive experience in both federal and state courts, including trial courts and courts of appeal, as well as in arbitration, mediation and administrative settings. Contact Matt at MHinks@jmbm.com or 310.201.3558.