Governor Issues Executive Order Suspending CEQA Deadlines for 60 Days and Revising Related Noticing Procedures

Note: This article was originally published on 4/30/2020 and was last updated on 6/1/2020.

Recognizing the impact of the current COVID-19 pandemic and social distancing on individuals’ and local governments’ abilities to adhere to statutory, filing, and regulatory deadlines under the California Environmental Quality Act (CEQA), on April 22 Governor Newsom issued Executive Order N-54-20 immediately suspending several CEQA deadlines for a period of 60 days, as well as revising certain noticing requirements.

Specifically, the Governor’s Order provides that the following deadlines are all suspended for 60 days from April 23, 2020:

• The public filing, posting, notice, and public access requirements set forth in Public Resources Code sections 21092.3 [preparation of an environmental impact report (EIR) or negative declaration] and 21152 [notices of determination], and California Code of Regulations, Title 14, sections 15062(c)(2) and (c)(4) [public inspection of notices of exemption]; 15072(d) [notices of intent to adopt negative declarations or mitigated negative declarations]; 15075 (a),(d), and (e) [notices of determination for negative declarations or mitigated negative declarations]; 15087(d) [notices of availability of draft EIRs]; and 15094(a), (d), and (e) [notices of determination], for projects undergoing, or deemed exempt from, CEQA review. Note, however, this suspension does not apply to provisions governing the time for public review of CEQA documents.
• The timeframes in Public Resources Code sections 21080.3.1 and 21082.3, within which a California Native American tribe must request consultation and the lead agency must begin the consultation process relating to an EIR, Negative Declaration, or Mitigated Negative Declaration under CEQA.

Local agencies are generally required to file notices of determination or notices of exemption within five days of approval of a project with the county clerk of each county where the project takes place, and the clerks are usually required to post these notices within 24 hours and for at least 30 days. However, per the Governor’s Order, agencies that would have been required to publicly post or file materials concerning a project or otherwise make such materials available to the public, must now do all of the following:

• Post the materials on the agency’s or the applicant’s public-facing website for the same period of time they would otherwise be required to be posted by the county clerk;
• Submit these materials electronically to the State Clearinghouse’s CEQA Webnet Portal; and
• Engage in outreach to individuals and entities known by the agency or applicant to be parties interested in the project in the manner contemplated by CEQA and the CEQA Guidelines.

Local agencies and applicants are also encouraged to pursue additional methods of public notice and outreach as appropriate for particular projects and communities.

On a related note, although the Governor’s Executive Order does not expressly relate to any “statutes of limitation” under CEQA, on April 6, 2020 the California Judicial Council issued 11 Emergency Rules, including Emergency Rule 9, which tolled all statutes of limitation for “civil causes of action” for the period between April 6, 2020 and 90 days after the Governor declares the end of the state of emergency regarding the COVID-19 pandemic.

However, after receiving numerous comments from multiple cities, counties, building associations, and land use practitioners, on May 28, 2020 the Judicial Council approved a revision to its Emergency Rule 9 to distinguish between those statutes of limitations of more than 180 days from those that are 180 days or less. Specifically, the newly amended Emergency rule 9 does the following:

• Tolls from April 6, 2020, until October 1, 2020, the statutes of limitation and repose for civil causes of action that exceed 180 days.
• Tolls from April 6, 2020, until August 3, 2020, the statutes of limitation and repose for civil causes of action that are 180 days or less.

The Judicial Council also added an advisory committee comment clarifying that this amended rule is broad and applies to all civil causes of action, including those brought pursuant to CEQA and the Planning and Zoning Law. The usual statutes of limitations under CEQA are 30 days to challenge an environmental impact report or negative declaration for which a valid notice of determination was filed; 35 days to challenge an exemption determination for which a valid notice of exemption was filed. Similarly, there is a  60-day statute of limitation to challenge a determination under the California Coastal Act. As none exceed 180 days, all of these statutes of limitation are now tolled until August 3, 2020 per the amended Emergency Rule 9.

Wendel Rosen LLP’s Land Use attorneys will update this post as any further clarification regarding the impact of these orders and emergency rules is provided, and our attorneys are available to answer any questions you may have regarding these changes to CEQA deadlines and noticing requirements.