Recent appellate cases have once again brought to the fore the critical importance of the “exhaustion of administrative remedies” for any potential challenger to an agency action based on noncompliance with the California Environmental Quality Act (“CEQA”), the National Environmental Policy Act (“NEPA”) and other laws meant to protect the environment and public.

In California, as example, public projects such as road construction, airport development, and power facilities, as well as private projects such as shopping centers are challenged on the basis of the failure to exhaust administrative remedies, or to present the alleged grounds of noncompliance “to the public agency orally or in writing . . . during the public comment period provided by this division or prior to the close of the public hearing . . .” Cal. Pub. Res. Code § 21177.

All too often, individuals, environmental organizations and public agencies wait to make their decisions to challenge the analysis of a project’s environmental impacts until their frustration peaks, and the time for filing a legal challenge arrives. [The usual time for filing a CEQA challenge is very short – 30 days from the filing by the agency of its Notice of Determination (“NOD”) which marks the final agency action in the CEQA process. NEPA is normally 60 days from the signing of the Record of Decision (“ROD”).] By that time, however, it is too late, because “exhaustion of administrative remedies is a jurisdictional prerequisite to maintenance of a CEQA action.” Bakersfield Citizens for Local Control v. City of Bakersfield, 124 Cal.App.4th 1184, 1199 (2004).

Moreover, simply articulating “generalized environmental comments at public hearings . . . [cites omitted]; relatively . . . bland and generalized references to environmental matters . . . [cites omitted]; . . . or isolated and unelaborated comments will not suffice.” Sierra Club v. City of Orange, 163 Cal.App.4th 523, 535-36 (2008). Instead, “the objections must be sufficiently specific so that the agency has the opportunity to evaluate and respond to them.” Id. Finally, “the petitioner bears the burden of demonstrating that the issues raised in the judicial proceeding were first raised at the administrative level.” Id. at 536.

Two recent California cases illustrate the ways in which two courts apply these strictures to arrive at diametrically opposing decisions. In Citizens for Responsible Equitable Environmental Development v. City of San Diego, 196 Cal.App.4th 515 (May 19, 2011), a citizens group challenged the Environmental Impact Report (“EIR”) for a residential development on the grounds that CEQA’s mandated Water Supply Assessment (“WSA”) was deficient. The court rejected the petitioners’ claim of having exhausted administrative remedies as a “perfunctory or skeleton showing . . .,” Id., at 528, where the petitioners rested their claim on: (1) a DVD submitted to the respondent city containing “thousands of documents,” Id., and (2) an accompanying letter referencing “evidence on water supply,” Id., but not specifically mentioning the word “drought.”

The court also rejected petitioners’ argument that they could rely on a statement by an unaffiliated party made at the public hearing that did reference “drought.” Even though “a petitioner may allege as a ground of noncompliance any objection that was presented by any person or entity during the administrative proceedings,” Id. quoting Bakersfield Citizens for Local Control, supra, 124 Cal.App.4th at 119, the court found that the testimony of a former councilman upon which the petitioners intended to rely was not specific enough, because, while petitioners claimed that the EIR’s analytic deficiencies required recirculation of a Supplemental Environmental Impact Report (“SEIR”), the councilman “never argued an EIR was necessary.” Citizens for Responsible Equitable Environmental Development, supra, 196 Cal.App.4th at 528. NEPA varies materially from CEQA on the issue of the required specificity of comments. Under NEPA, a would-be challenger must have raised the specific issue upon which it wishes to base its challenge during the administrative process.

Just one month later, another Appellate Court decided the issue differently, by relying on a variant of the exhaustion standard. In Santa Clarita Organization for Planning the Environment v. City of Santa Clarita, 197 Cal.App.4th 1042 (June, 2011), the court found that petitioner had adequately “papered the record,” even though the petitioner had not previously, among other lapses, provided explicit examples of the numerous mitigation measures it claimed in its challenge the city should have considered in the EIR’s analysis of the project’s global warming impacts. The court acknowledged that the petitioner had not been as specific as desirable. However, it found, despite some reservations about the petitioners’ alleged naiveté about CEQA’s procedural requirements, Id. at 1051, that “less specificity is required to preserve an issue for appeal in an administrative proceeding than in a judicial proceeding,” Id., quoting Citizens Association for Sensible Development of Bishop Area v. County of Inyo, 172 Cal.App.3d 151, 163 (1985). This was because “[parties] generally are not represented by counsel. To hold such parties to knowledge of the technical rules of evidence and to the penalty of waiver for failure to make a timely and specific objection would be unfair to them.” Citizens Association for Sensible Development of Bishop Area, supra, 172 Cal.App.3d at 163.

In short, courts can make radically disparate decision on the adequacy of exhaustion of administrative remedies, based on similar sets of facts and arguments. The solution is: (1) to engage an experienced attorney who can provide educated counsel concerning the issues in the environmental analysis most vulnerable to challenge; (2) to comment early and often on those and other issues, preferably starting with the Notice of Preparation of the Environmental Impact Report (“NOP”), including comments on the Draft Environmental Impact Report (“DEIR”), which is proforma, and ending only with the last document in the environmental analysis available for review, normally the Final Environmental Impact Report (“FEIR”); and (3) to make comments as technically specific as possible, even if this involves the expenditure for a technical consultant. It is only through those three steps that a would-be petitioner can successfully withstand the “exhaustion of administrative remedies” defense that is all but certain to arise in environmental litigation.