In Citizens for Ceres v. The Superior Court of Stanislaus County, City of Ceres, et al., (filed and published in part by the Fifth Appellate District on July 8, 2013), the petitioner in a CEQA lawsuit sought relief from the appellate court ordering the trial court to require production of thousands of pages of documents that the City refused to add to the administrative record.  The City had refused to make the withheld documents part of the record based on various privileges, including those applied by way of the “common interest” doctrine.  The Court of Appeal held that the common interest doctrine (derived from Evidence Code §§ 912, 952) did not protect from disclosure preapproval communications between the City and the project applicant, and remanded the case for the trial court to apply this rule. The decision creates a split in authority regarding the application of the common interest doctrine.

In reviewing the City’s assertion of privilege, the Court first found that CEQA, specifically Public Resources Code section 21167.6, which defines the scope of the administrative record, does not abrogate privileges generally, including the attorney-client and attorney work-product privileges.  The Court went on to find, however, that the common interest doctrine, which operates to prevent the waiver of attorney-client and work-product privileges when the disclosure of information is necessary to accomplish the purpose for which the legal advice was sought, does not protect agency-applicant communications before project approval.

The Court reasoned that a public agency’s duty to analyze a project’s environmental impacts objectively was “fundamentally divergent” from an applicant’s interest in seeking approval on favorable, least burdensome terms possible.  Thus, the Court determined that shared legal advice at the preapproval stage could not advance any shared interest.  The court contrasted this finding with post-approval communications, where the agency and applicant share an interest in defending the project as approved, and thus share an interest sufficient to prevent the waiver of privilege related to shared communications. 

The Fifth District Court acknowledged that its holding likely conflicts with the Third Appellate District’s prior decision in California Oak Foundation v. County of Tehama, 174 Cal. App. 4th 1217, 1222 (Cal. App. 3d Dist. 2009).  In that case, a petitioner moved to compel production of letters from outside counsel to the agency that provided “advice on CEQA compliance issues” and were disclosed to the project applicant.  Though the court in California Oak did not distinguish between pre- and post-approval communications, it did expressly find that the common interest doctrine did protect communications between the agency and the applicant that were made for the purpose of complying with CEQA.

Although California Oak did not explicitly discuss pre- and post-approval communications, there appears to be a significant circuit court split of authority regarding the application of the common interest doctrine to agency-applicant communications in CEQA matters.  The Citizens for Ceres Court’s bright line rule that the common interest doctrine shall never operate to protect agency-applicant communications in the preapproval process is a ruling that could significantly impact the sharing of legal advice in the CEQA context, and the split of authority it creates may be ripe for California Supreme Court review.

Co-authored by Andrew Brimmer and Carissa Beecham