On April 23, 2020, Governor Newsom issued Executive Order N-54-20 (EO), which modifies CEQA’s noticing provisions and suspends tribal consultation timelines under AB 52 for 60 days.
CEQA Notice & Posting Impacts
Paragraph 8 of the EO suspends for 60 days the requirements for physical filing, posting, noticing, and allowing public access to notices of determination, notices of exemption, and notices of intent to adopt a negative declaration or mitigated negative declaration, as well as notices of preparation for and availability of environmental impact reports.
Instead of making the notices available in the offices of the lead or responsible agency or office of the county clerk, the notices are to be made publicly available on the lead or responsible agency’s or the applicant’s website for the same period of time that physical posting would otherwise be required. In addition, all notices are to be submitted electronically to the State Clearinghouse CEQAnet Web Portal, and lead and responsible agencies and project applicants must engage in outreach by other non-physical methods to any individuals and entities known to be interested in the project, consistent with CEQA requirements.
The 60-day physical posting and notice suspension does not impact the timing for public review and comment; rather, the suspension aims to maintain public access opportunities and involvement, while protecting the public and agency staff from undue COVID-19 exposure. These changes also do not impact the effective date for starting the limitations period through electronic posting of a notice of determination. However, the Judicial Council’s Emergency Rule 9 tolls the statute of limitations for all “civil matters” (which likely includes special proceedings and writs of mandamus under CEQA) to 90 days after the Governor issues an order lifting the state of emergency. (See our Emergency Rule 9 update for more information.)
(Note: There is currently an effort underway to ask the Judicial Council to amend Emergency Rule 9 as it pertains to writs of mandates. Differing approaches have been proposed to the Judicial Council. We will continue to monitor the Judicial Council’s subsequent actions, if any, relating to Emergency Rule 9 as well as future EOs that may be issued by the Governor.)
AB 52 Process Impacts
The EO acknowledges that tribal capacity to engage in or request consultation on land use projects is limited due to the pandemic and social distancing. Under paragraph 9 of the EO, the AB 52 California Native American tribal consultation timeframes for tribes to request consultation and for lead agencies to begin the consultation process are suspended for 60 days to June 21, 2020. Under the EO, lead agencies must still provide formal notification to the appropriate California Native American tribe(s) within 14 days of determining that a project application is complete or deciding to undertake a project. Projects requiring a negative declaration, mitigated negative declaration, or EIR, that have not begun the AB 52 process and ultimately do not require AB 52 consultation (i.e., the tribe does not request consultation within 30 days) may not proceed until July 21, 2020, to account for the 30-day period in which a tribe may request consultation. (Pub. Resources Code § 21080.3.1(d).) For projects ultimately requiring AB 52 consultation, the time to begin consultation is extended (at latest) to August 20, 2020 to account for the initial 30 days for tribes to request consultation and 30 days for the lead agency to begin consultation. (Pub. Resources Code § 21080.3.1(d)-(e); Pub. Resources Code § 21080.3.1(b)(1); Office of Planning and Research AB 52 Compliance Timeline and Consultation Process Flowchart.)
The implications of this portion of the EO are likely significant to applicants seeking to process projects quickly. While the timing of the AB 52 process is inherently flexible and based on the speed of the respondent tribe and agency responsiveness within two 30-day deadlines, it’s likely that once the EO sunsets on June 21, 2020, both tribes and agencies will be severely backlogged with consultation requests. Agencies often will not release draft environmental review documents until consultation has occurred. Further, EIRs and mitigated negative declarations cannot be certified until the consultation process has concluded. (Pub. Resources Code § 21082.3(d).)
In sum, the EO seeks to address the impacts of social distancing on public agencies and tribes and attempts to balance noticing and consultation requirements with the need to move projects forward. However, delays in the administrative process in conjunction with the current open-ended statute of limitations (tied to the unpredictable date at which the state of emergency is declared to be over) are going to present severe challenges to many projects.