ACBA Environmental Law Section Executive Committee members Jason Holder and Jewell Hargleroad interviewed the Honorable Evelio Grillo concerning his experience presiding over litigation under the California Environmental Quality Act (“CEQA”) and any advice he may have for practitioners.
Judge Grillo was appointed to the Alameda County Superior Court in 2003 and, in January 2012, was designated as one of two CEQA judges for Alameda County. The interview prompted a lively discussion about CEQA, legal advocacy, and the stakes involved in land use and environmental disputes.
Question: How can attorneys representing parties in CEQA cases best prepare to have their claims and defenses fully considered by the Court?
Judge Grillo: There are two things attorneys can do to be well prepared in a CEQA action:
Attorneys should not attempt to twist the facts to suit the legal arguments they present. The Court will see through such attempts and the attorneys will lose credibility. For example, counsel should avoid arguing that a program Environmental Impact Report (“EIR”) was a project EIR in order to gain a less deferential standard of review of the administrative determination.
Question: What are the most common mistakes that you have observed CEQA counsel make during the litigation process?
Judge Grillo: Generally, the mistakes lawyers may make are not “common,” simply because each case is different.
But, again, lawyers should avoid trying to put a “square peg of facts into a round hole of law.” For example, when a project challenged under CEQA clearly falls within a statutory exemption, the challenging lawyer should not attempt to argue that the project is not exempt by twisting the facts in the record. Another common error is the attempt by some to contend that a project may only require a negative declaration, when in fact an environmental impact report should be prepared. This is unwise given that there is little “second guessing” of an agency’s factual determinations when following the decisional rule of deference to those agencies. But, so far, this rarely happens.
Question: What types of courtroom behavior among attorneys do you appreciate the most, and, what behavior tests the limits of your patience?
Judge Grillo: One great pleasure of presiding over these cases is the high caliber of counsel. If and when an issue may require further briefing, counsel are almost universally cooperative, which may be attributable at least in part to the “small world” of CEQA practitioners, where collegial behavior survives among counsel.
Question: What do you consider the most valuable information presented in oral argument, after you have reviewed the briefs?
Judge Grillo: Oral argument serves a number of important functions. I use oral argument to get a feel for the case … and to understand what is really going on. A good example of where oral argument can help is on issues such as the “lurking statute of limitations” question. In these circumstances, oral argument often is useful to help determine whether a subsequent project is really part of an unchallenged earlier project that was the subject of an EIR that is now “presumed adequate.” And my advice to practitioners, is to be prepared at oral argument to point out in the record that dispositive point upon which they rely. Those types of points made during oral argument have convinced me that a case that may have appeared to merit a grant of the petition, in fact requires a denial.
Question: What are the biggest challenges of handling CEQA litigation?
Judge Grillo: The biggest practical challenge involves reviewing and parsing the voluminous administrative records. Even with more than one staff member involved, it takes quite a bit of work to understand the facts in the record. Oral argument often helps to illuminate the facts that are not apparent from reading the “cold black and white” summary of facts and arguments presented in the briefs. It is not uncommon for oral argument to sway the decision, which is why I almost always take matters under submission after oral argument.
Electronic preparation of the Record has helped with the challenges by making searching for and reviewing documents more manageable, but generally a review of the hard copies often helps put the circumstances in a more understandable context of asserted facts.
Question: What do you find most interesting about CEQA cases?
Judge Grillo: I appreciate having really good attorneys working on a case. The issues that these cases raise are also quite intellectually provocative. The undecided legal issues are fascinating, as are the issues concerning the environmental impacts of projects. One example is the question of whether CEQA requires the consideration of the environment on a project as opposed to the project’s impacts on the environment. This and other unresolved issues can be fascinating.
Question: What is your approach to evaluating the merits of a CEQA case? In other words, what systems do you have in place to consider complex facts and law involved in these cases?
Judge Grillo: I use research attorneys to take an initial evaluation of the arguments presented in the case, but it is an iterative process. I will often use oral argument to illuminate issues and probe the parties further.
Many of the cases are not especially complicated. As many as half of the cases involve some sort of mistake that can make the case easier to resolve. If it’s a mistake by the lead agency, often the ruling will provide enough direction to the agency to correct the mistake.
Question: What types of CEQA cases have given you the most difficult calls to make, and why?
Judge Grillo: The practical problems generally arise with the huge size of many underlying administrative records. The other challenge is the simple pageantry of the issues which in and of themselves can be fascinating: protection of species, whether an activity will impact the environment and people. Water, of course, is the other tough issue raising many questions of first impression. Should a project be required to have an assured source of water?
Then there is the other part of CEQA litigation which does not involve an application of the Public Resource Code, but concerns the award of costs and attorney fees. It can be hard at times making the call when a case may be ripe for an award, such as at what stage in the CEQA proceeding a motion to recover attorney under section 1021.5, of the Code of Civil Procedure, the private attorney general statute, should be made.
On behalf of the Environmental Section of the ACBA, we appreciate the time you have given us. For more information on the ACBA Environmental Law Section, and to join, please visit: https://alamedacountyb.wpengine.com/Sections/EnvironmentalLaw.aspx.
 The interview has been edited for concision.