Bill to create environmental court lacks specificity

On Jan. 18, state Senate Majority Leader Ellen Corbett (D) introduced Senate Bill 123, which would establish an environmental and land-use division within each of California's 58 superior courts. These divisions would be assigned civil proceedings brought under the California Environmental Quality Act (CEQA) or in any of the following subject areas: air quality, biological resources, climate change, hazardous materials, land-use planning and water quality.

Noting that environmental issues are "often complex and fragmented" and have made it difficult to "achieve consistent and long-range sustainable development," SB 123 offers as a solution "specialized judges trained in environmental and land-use law ... whose decisions would be document-ed and published." The bill states that the creation of such courts "can maximize both judicial competence and the speed of decision making" and is intended to result in "more consistent rulings and better outcomes for all parties of interest."

From an environmental litigator's perspective, SB 123 is indeed an interesting concept deserving consideration. However, due to some ambiguity in the legislation and uncertainty about its potential impact, the bill will require further specificity, analysis and stakeholder input before its merits and weaknesses can be fully evaluated.

More specificity, please

As presently drafted, SB 123 is a very brief piece of legislation that identifies a conceptual framework for the establishment of statewide environmental courts, but defers delineation of the structure and procedures of these courts to the Judicial Council, the policymaking body for the California court system.

The decision to defer the details of implementation to the court system itself is a wise one: ultimately, judges and court administrators are in the best position to determine how such an "environmental division" should function. But the bill needs to provide clear guidance as to the outer bounds of the discretion being delegated to the Judicial Council.

That guidance is lacking, or at least ambiguous, in SB 123, as currently written. For example, the bill directs the Judicial Council to identify the environmental and land use "statutes" that would define the jurisdiction of the new divisions. However, the bill is silent as to whether nonstatutory, common law tort claims should be included, even though such claims are the basis for a great deal of environmental litigation concerning property damage, as well as the sole basis for "toxic tort" personal injury cases based on exposure to hazardous materials. Nor does SB 123 indicate whether cases that involve insurance and other contractual disputes over environmental liabilities would fall within the jurisdiction of the new divisions.

Similarly, the bill mentions in its findings that the decisions of the environmental judges would be documented and published, but the implementing provisions of the bill do not actually direct the Judicial Council to take any action on this point, and it is entirely unclear whether SB 123 anticipates that such published decisions would be given precedential value.

Thus, before the full impact of SB 123 can be understood, the bill will need to be revised to provide additional details and clarification.

More analysis, please

SB 123 also leaves unanswered several questions relating to the need for, costs associated with, and efficacy of the proposed environmental divisions.

With respect to need, it is unclear what proportion of California's judicial resources are presently dedicated to environmental and land-use litigation that would fall within the jurisdiction of the proposed environmental courts. If the proportion is great, environmental courts could make economic and administrative sense, assuming that specially-trained judges are able to decide environmental cases more quickly, as the bill suggests. Because the annual California Court Statistics Report does not track cases filed under the "environmental/toxic tort" category listed on the Judicial Council civil case cover sheet (filed with any new complaint), it is not apparent whether environmental litigation represents a critical burden on the courts. With respect to CEQA cases, an analysis by the Natural Resources Defense Council concluded that the total number is small, averaging only about 200 a year out of approximately 1,100,000 total civil case filings. NRDC, "CEQA: The Litigation Myth" (2013). A similar breakdown of environmental and land-use cases, including those involving statutory, common law and insurance/contract claims would prove helpful in analyzing the actual need for SB 123.

With respect to costs, it will be critical to understand the impact of SB 123 on the court system's budget and staffing, particularly given that the bill does not provide any funding for the proposed environmental divisions. California's judicial branch has long been burdened with declining budgets and scarce resources. In fact, over the past five years, General Fund support for California courts has declined by nearly two-thirds. See "In Focus: Judicial Branch Budget Crisis," www.courts.ca.gov/partners/courtsbudget.htm. The bill suggests that cases will be decided more quickly if they are assigned to specialized judges. Yet SB 123 does not address whether these benefits outweigh the burden on the rest of the civil justice system, in terms of the monies, judges and staff, and other resources that would be diverted to the new divisions.

Finally, with respect to efficacy, two fundamental assumptions underlying SB 123 remain untested: (1) do specially-trained environmental judges deliver "more consistent rulings and better outcomes for all parties," and (2) are environmental and land-use laws so complex that they require specialist judges? One might assume that the answer to both questions is "yes," but it does not appear that there have been any comprehensive analyses on either point, which are crucial factors when evaluating the value of SB 123 or similar legislation. It may be that there is no way to test these assumptions at all without first creating environmental divisions and observing the outcomes. If this is the case, then it would be imprudent to mandate the creation of environmental divisions across the state without first running pilot tests in one or more superior courts.

More input, please

In light of these ambiguities and uncertainties, it will be important for the legislature to hear from two groups of stakeholders who are arguably in the best position to provide feedback on the potential impact of SB 123: land use and environmental litigators, and superior court judges and court administrators. A dialogue with these groups will be crucial to understanding what, if anything, in the current system presents a solvable problem, and whether legislation like SB 123 is the right solution.