Since proclaiming a state of emergency on March 4, 2020, Governor Gavin Newsom has issued several Executive Orders designed to mitigate the threat posed by COVID-19. On April 22, he issued another such order: Executive Order N-54-20 (“EO”). Among other things, the EO does the following: 1) Suspends certain public filing, notice, posting, and public access requirements mandated under the California Environmental Quality Act (“CEQA”); 2. Suspends certain tribal consultation timeframes mandated under CEQA; and 3. Imposes certain public access and engagement requirements during the suspension period. The suspension period was set at sixty days, beginning on 23 April and ending on 22 June. It is important to note that the EO does not suspend any of CEQA’s timing requirements regarding public review periods for draft Environmental Impact Reports (“EIR”), negative declarations, or mitigated negative declarations.
Suspension of Public Filing, Notice, Posting, and Public Access Requirements
Here is a brief summary of the filing, notice, posting, and public access requirements which have been suspended under the EO.
Public Resource Code § 21092.3: In accordance with this code provision, the lead agency responsible for a project must post notification of its intent to prepare an EIR within the office of the county clerk, in each county where the project will be located. The notification must include language alerting the public to the mandatory public review period. Additionally, the lead agency must also post notification of its intent to adopt a negative declaration. The notification must remain posted within the office of the county clerk for twenty days, unless otherwise required by law to remain posted for thirty days.
Public Resource Code § 21152: In accordance with this code provision, when a local agency approves or determines to carry out a project, that agency must file a notice of determination—within five working days after the approval or determination becomes final— within the office of the county clerk, in each county where the project will be located. However, where a local agency determines that a project is exempt from CEQA review, and subsequently approves or determines to carry out that project, the agency must file a notice of exemption within the office of the county clerk, in each county where the project will be located. Notices of determination and exemption must remain posted for a period of thirty days.
CEQA Guidelines § 15062(c)(2) and (c)(4): In accordance with this code provision, when a public agency approves an applicant’s project, either the agency or the applicant must file a notice of exemption within the office of the county clerk, in each county where the project will be located. Such notices must remain posted for a period of thirty days.
CEQA Guidelines § 15072(d): In accordance with this code provision, a lead agency must provide a notice of intent to adopt a negative declaration or mitigated negative declaration to the office of the county clerk, in each county where the project will be located. Such notices must be posted in the office of the county clerk for a minimum of twenty days.
CEQA Guidelines § 15075(a), (d), and (e): In accordance with these provisions, when a lead agency approves or determines to carry out a project for which a proposed negative declaration or mitigated negative declaration has been approved, that agency must file a notice of determination—within five working days after the approval or determination becomes final— within the office of the county clerk, in each county where the project will be located. Such notices must be posted in the office of the county clerk for a minimum of thirty days.
CEQA Guidelines § 15087(d): In accordance with this provision, a lead agency must provide public notice of the availability of a draft EIR for public review. Such notices must be posted within the office of the county clerk, in each county where the project will be located, for a minimum of thirty days.
CEQA Guidelines § 15094(a), (d), and (e): In accordance with these provision, when a lead agency approves or determines to carry out a project for which an EIR has been certified, that agency must file a notice of determination—within five working days after the approval or determination becomes final— within the office of the county clerk, in each county where the project will be located. Such notices must be posted in the office of the county clerk for a minimum of thirty days.
Suspension of Tribal Consultation Timeframes
In addition to the suspensions mentioned above, the EO also suspends certain CEQA mandated tribal consultation timing requirements. Here is a brief summary of those tribal requirements.
Public Resource Code § 21080.3.1: In accordance with this provision, lead agencies must give written notice to any California Native American tribes that that are 1) traditionally and culturally affiliated with the geographic area of a proposed project, and 2) have submitted a written request for such notice. The notice must be provided within fourteen days after the lead agency determines that the application for the project is complete or, in the case of a project proposed by the lead agency, within fourteen days after the agency determines to undertake the project. The notice must include a brief description of the proposed project, its location, the lead agency's contact information, and a statement that the tribe has thirty days to request a consultation. When a tribe responds to the notification and indicates a desire for consultation, a mandatory consultation process begins regarding tribal cultural resources that may be affected by the project. The lead agency must begin the consultation process within thirty days after it receives such a request.
Public Resource Code § 21082.3: In accordance with this provision, if it is determined that a project may have a significant impact on a tribal cultural resource, a lead agency may not certify an EIR or adopt a mitigated negative declaration for a project until one of the following occurs:
1) The consultation process between the California Native American tribe and the lead agency has concluded.
2) The California Native American tribe has requested consultation but failed to provide comments to the lead agency or engage in the consultation process.
3) The lead agency has complied with the requirements of Public Resource Code § 21080.3.1, above, and the California Native American tribe has failed to request consultation within thirty days.
Public Access and Engagement Requirements During the Suspension Period
Where a lead agency, responsible agency, or project applicant is operating under any of these suspensions, and would otherwise have been required to publicly post or file materials with any county clerk, or otherwise make such materials available to the public, that agency or applicant must do the following, during the sixty-day suspension period:
1) Post such materials on the relevant agency's or applicant's public-facing website for the same period of time that physical posting would otherwise be required.
2) Submit all materials electronically to the State Clearinghouse CEQAnet Web Portal.
3) 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.
Moreover, the EO further encourages lead agencies, responsible agencies, and project applicants “…pursue additional methods of public notice and outreach as appropriate for particular projects and communities.”
California Judicial Council Emergency Rule Nine and CEQA
On April 6, 2020, the California Judicial Council introduced several amendments to the California Rules of Court. Among those amendments was Emergency Rule Nine, which tolls the statute of limitations for civil causes of action “…from April 6, 2020, until 90 days after the Governor declares that the state of emergency related to the COVID-19 pandemic is lifted.” Given the unique nature of CEQA lawsuits, this rule may have unintentionally created pitfalls for both project developers and CEQA practitioners.
First, CEQA proscribes much shorter statutes of limitations than many other civil lawsuits. In many cases, depending upon the specific grounds for challenge, CEQA lawsuits must be filed within as little as thirty days. See Cal. Pub. Resource Code Section 21167. Second, a CEQA lawsuit is brought through filing a petition for writ of mandate, as opposed to a standard civil complaint. While Emergency Rule Nine applies to “civil causes of action,” writs of mandate are special proceedings, separate and distinct from other types of civil causes of action. See Code Civ. Proc. §§ 21-24. Lastly, given the difficulty in precisely determining when Governor Newsom has “lifted” the state of emergency related to the COVID-19 pandemic, it may be equally difficult to determine precisely when the tolling period under Emergency Rule Nine ends for purposes of calculating how much time remains under the statute of limitations that was tolled pursuant to this rule.
Project developers and CEQA practitioners, alike, must keep these considerations in mind in order to adequately plan and manage risk. Those who simply assume Emergency Rule Nine has tolled the CEQA statute of limitations until 90 days after California’s state of emergency is lifted may find their lawsuits barred by the courts.
Conclusion
Amid the COVID-19 pandemic, uncertainty, fluidity, and rapid change is common. As a result, developers, agencies, and public stakeholders must carefully monitor orders being issued at every level, in order to fully understand how projects will be affected. The attorneys of Johnson, Rovella, Retterer, Rosenthal & Gilles, LLP have decades of land use and environmental law experience. We stand ready to assist you with all project permitting and development needs. Should you wish to speak with an attorney, please contact J. R. Parker. He can be reached, via e-mail, at jr@jrgattorneys.com, or telephone, at (831) 228-5619.
J.R. is a Litigation and Land Use Associate with Johnson, Rovella, Retterer, Rosenthal & Gilles, LLP. He specializes in Litigation, Land Use, Energy, and Environmental Law.
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