Gov. Newsom Suspends Some CEQA Requirements, Threatening the Ability of Certain Projects to Proceed

Gov. Newsom Suspends Some CEQA Requirements, Threatening the Ability of Certain Projects to Proceed

Apr 28, 2020

Client Alert

Brownstein Client Alert, April 28, 2020

As the coronavirus pandemic continues, Gov. Newsom issued an executive order to address challenges faced by lead agencies, responsible agencies, and project applicants in adhering to certain public filing and notice requirements under the California Environmental Quality Act (“CEQA”), which it claims may now be “impossible or impracticable” due to social distancing measures.

Background

On April 23, 2020, Gov. Newsom issued Executive Order N-54-20 (the “EO”), which suspends a number of CEQA-specific noticing requirements for 60 days, including Public Resources Code §§ 21092.3 and 21152, and CEQA Guidelines §§ 15062(c)(2) and (c)(4); 15072(d); 15075 (a), (d), and (e); 15087(d); and 15094(a), (d), and (e).

This EO affects:

  • Notices of Preparation
  • Notices of Availability
  • Notices of Intent to Adopt Mitigated Negative Declarations (MNDs)
  • Notices of Determination (NODs)
  • Notices of Exemption (NOEs)

CEQA Notices No Longer Posted by County Clerk

The EO generally suspends the requirement that the lead agency file and the County Clerk/Recorder post the aforementioned notices. The EO justifies the suspension by stating that it will help to maintain social distancing.

Instead, the EO directs lead agencies to utilize these alternative forms of public noticing:

  • Post the notice on the lead agency’s website for the same period of time that posting at the Clerk/Recorder’s office would require;
  • Submit the notice to the State Clearinghouse at the CEQAnet Web Portal, see https://ceqanet.opr.ca.gov/;
  • “Engage in outreach to any individuals and entities known by the lead agency, responsible agency, or project applicant to be parties interested in the project in the manner contemplated by the Public Resources Code sections 21100 et seq. and California Code of Regulations, Title 14, sections 15000 et seq.;” and,
  • All other appropriate methods for the project at issue.

Can the lead agency still circulate a CEQA document for a defined comment period?

Yes, the EO states that it “does not apply to provisions governing the time for public review.”

Can the lead agency still file a NOD or NOE?

Yes, while the EO suspends requirements, it does not bar a lead agency from filing a NOD or NOE if a County Clerk/Recorder will accept the document. Further, the EO provides alternative forms of public notice for posting NODs and NOEs. It remains unclear, however, whether Judicial Council Emergency Rule 9 may stay all CEQA statutes of limitations until 90 days after the Governor lifts the state of emergency. (See CEQA News You Can Use, Volume 5, Issue 1.) CEQA practitioners are awaiting clarification from the Judicial Council.

Suspended Tribal Consultation Process May Stall Projects

Possibly the most consequential part of the EO concerns suspension of the tribal consultation timeframes set forth in Public Resources Code §§ 21080.3.1 and 21082.3. The EO suspends the time period for Native American tribes to respond to a request for consultation, and the time period for lead agencies to engage in consultation once a request has been received. This affects projects undergoing environmental review where tribal consultation has not yet been requested, or the time period for a response has not yet expired. As a practical matter, this may significantly impact the timelines for approving projects.

Suspending tribal consultation timeframes in this fashion could further delay projects in the pipeline (including critical housing and infrastructure projects) by stalling their processing. It would be better if the order provided an alternate way to initiate and engage in the tribal consultation process while maintaining social distancing, as the EO does with the other CEQA sections. For example, before the pandemic, tribal consultation was often conducted over email and telephone, and also can be conducted over videoconferencing platforms, the use of which has greatly expanded recently. 

Click here to read more Brownstein alerts on the legal issues the coronavirus threat raises for businesses.

This document is intended to provide you with general information regarding certain public filing and notice requirements under the California Environmental Quality Act impacted by COVID-19. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions.

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