Member Article

Key Points:

• An executive order from the governor's office modifies California Environmental Quality Act ("CEQA") noticing procedures, requiring local agencies to take extra steps to notify the public that environmental review processes are underway or have concluded for development projects.
• Extra steps include posting notices on agency websites and active outreach to interested parties.
• However, while not perfectly clear, for certain CEQA approvals finalized after April 6, it appears that statutes of limitations for challenges under CEQA have been extended until after the COVID-19 pandemic has ended. When, exactly, these limitations periods end is not now known, and California cities and counties have made efforts to clarify the process and impose shorter time extensions.

Recent changes to procedures relating to the CEQA have potentially changed the way that public entities and others must plan for approving and commencing their projects during the state of emergency arising from the COVID-19 pandemic.

Governor Newsom's Executive Order N-54-20, issued on April 22, suspends all filing, posting, notice, and public access requirements for notices of preparation of an EIR or negative declaration to responsible agencies and others, notices of intent to file an negative declaration, notices of availability of an EIR, and notices of determination ("NODs") and exemption. Local agencies are generally required to file NODs 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 most all of these notices within 24 hours for at least 30 days. However, agencies that would otherwise have been required to post or otherwise file materials concerning a project must:

1. Post them 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;
2. Submit these materials electronically to the State Clearinghouse's CEQA Webnet Portal; and
3. 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.
   
   

However, implementing these alternative procedures does not trigger any CEQA statutes of limitations. It appears statutes of limitations have been extended to 90 days beyond the end of the COVID-19 state of emergency, though efforts are underway to shorten these deadlines.

Effective April 6, 2020, the Judicial Council issued Emergency Rule 9, which tolled all statutes of limitation for “civil causes of action” for the period between April 6 and 90 days after the Governor declares the end of the state of emergency regarding the COVID-19 pandemic. On April 13, representatives of the California League of Cities, the California Association of Counties, and the Rural County Representatives of California requested in a letter to the Judicial Council that it modify the emergency rule to shorten the statute of limitations applicable to actions brought under CEQA and the Coastal Act to the usual limitations periods, which would begin running after the end of the Governor's emergency declaration. The usual statutes of limitations under these acts are 30 days to challenge an environmental impact report or negative declaration, 35 days to challenge an exemption determination, and 60 days to challenge a determination under the Coastal Act. The letter cited potential negative impacts of longer statutes of limitations upon financing for and construction of affordable housing, homeless shelters, and transitional housing.