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).