This Is the Fourth Installment in a Series That Unpacks Key Reforms Established by AB 130 and SB 131
Highlights
- Senate Bill (SB) 131 includes reforms to litigation procedure under the California Environmental Quality Act (CEQA) intended to relieve the burden on CEQA litigants when preparing the CEQA administrative record and speed up the litigation process.
- Under SB 131, the CEQA administrative record need only contain internal agency communications, such as emails, that were presented to the final decision-making body for the project or reviewed by certain high-ranking executives and officials. Note that this limitation does not apply to oil and gas infrastructure or distribution center projects.
- SB 131 clarifies that the CEQA "initial study" and drafts of environmental documents do not need to be included in the administrative record if they were not previously released for public review.
This Holland & Knight alert is part of a series examining major reforms that have been instituted in California in 2025 and their potential impact on various projects in the near future and down the road. For a primer on the important "infill" housing-related California Environmental Quality Act (CEQA) reforms, see Holland & Knight's previous alert, "California Legislature Enacts Major CEQA Reforms for Housing-Rich 'Infill' Projects," July 2, 2025. Additional alerts on other aspects of Assembly Bill (AB) 130 and Senate Bill (SB) 131 will be available on Holland & Knight's West Coast Land Use and Environment blog, Breaking Ground. A two-part webinar series is scheduled for Aug. 20 and Aug. 27, 2025, and will feature analysis of the new laws and a Q&A with Holland & Knight attorneys.
Also in This Series:
As explained in prior Holland & Knight alerts, AB 130 and SB 131 were signed by California Gov. Gavin Newsom on June 30, 2025, and went into effect immediately. These new laws introduce a new "infill" housing CEQA statutory exemption and "near-miss" streamlined review process for housing projects. Additionally, these new laws establish other key CEQA reforms applicable to a variety of non-housing project types. This alert is intended to explain the nuances of SB 131's impact on CEQA litigation.
Background on CEQA Administrative Record
When a CEQA decision is legally challenged, the lead agency's record of "proceedings relating to the subject of the action" must be compiled and filed with the court. Public Resources Code Section 21167.6 sets forth an extensive list of materials that must be included in the record of proceedings, also known as the "administrative record."
Some California courts have interpreted Section 21167.6 broadly, holding that the administrative record should "include pretty much everything that ever came near a proposed development or to the agency's compliance with CEQA in responding to that development" (e.g., County of Orange v. Superior Court, 113 Cal. App. 4th 1, 8, 6 Cal. Rptr. 3d 286 (2003)). As a result, CEQA litigants regularly prepare voluminous administrative records containing thousands of files, a costly process that delays judicial resolution and adds public expense to the CEQA process.
In order to relieve the burden on public agencies and CEQA litigants and facilitate efficient judicial review, SB 131 amends Public Resources Code Section 21167.6 to limit the scope of the CEQA administrative record for most CEQA actions.
Internal Agency Communications
One category of documents that Public Resources Code Section 21167.6 requires be included in the administrative record is "internal agency communications," such as internal agency emails. With the adoption of SB 131, it is no longer necessary to include every agency email or communication that touches the project in the record. Rather, SB 131 clarifies that the administrative record need only include those internal agency communications that were actually presented to the final decision-making body or were reviewed by other high-ranking agency executives or supervising officials. Notably, however, this new rule does not apply to CEQA litigation concerning oil and gas infrastructure or distribution center projects.
Unreleased Environmental Documents
SB 131 also clarifies that certain documents that were not previously released to the public need not be included in the administrative record. Specifically, any CEQA "initial study" prepared by the project's lead agency or other draft environmental review documents need not be included in the administrative record if they were not previously released for public review.
Conclusion
In adopting SB 131, the legislature expressed its intent that CEQA "not be used primarily for economic interests, to stifle competitive advantage, or to delay a project for reasons unrelated to environmental protection."
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