Scope of Materials, Including E-mails, in Administrative Records for CEQA Cases

By Holly O. Whatley*

Given the detailed statutory provisions regarding the record set forth in the California Environmental Quality Act ("CEQA"), Pub. Res. Code, §§ 21000 et seq., and the countless published opinions interpreting them, one would expect that the question of what material should be included in the record on a CEQA challenge would be long settled. Alas, such is not the case. The diversity of projects subject to CEQA and the various relationships that an agency may have with a project applicant in both the pre- and post-decisional stages ensure that it is more common than not that a question will surface regarding the scope of the administrative record for which no case is directly on point.

Against this backdrop, this article first reviews the basic principles governing the scope of administrative records; next, it provides a basis to determine whether to include historical material previously considered by the agency; third, it highlights guidance the courts have provided on specific types of material to include; fourth, it examines the impact of Citizens for Ceres v. Superior Court, 217 Cal. App. 4th 889 (2013), on inclusion in the record of communications between the agency’s and applicant’s respective attorneys; and, finally, it explores the analysis applicable to e-mails.

WHY WE PREPARE ADMINISTRATIVE RECORDS