On June 11, 2021, Governor Newsom issued Executive Order N-08-21 (Order), which sets sunset dates on dozens of executive order provisions previously issued to address the COVID-19 pandemic, including some impacting CEQA and land use. Specifically, the Order sets a sunset date for the suspension of CEQA’s public filing, posting, notice, and public access requirements; extension of the AB 52 tribal consultation timeline; modification of the Bagley-Keen Open Meeting Act and Brown Act; and the suspension of CEQA for projects using Homeless Emergency Aid Program Funds. Other previously issued orders, including those suspending certain timelines under the Permit Streamlining Act and California Coastal Act, remain in effect.
CEQA Public Filing, Notice, Access Requirements to be Reinstated September 30, 2021
Executive Order N-54-20, Paragraph 8 (as modified by N-80-20), suspended requirements for physical filing, posting, noticing, and public access to various notices required by CEQA. Paragraph 8 required notices 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 to an electronic submission to the State Clearinghouse CEQAnet Web Portal. Lead and responsible agencies and project applicants were also tasked with engaging in outreach by non-physical methods to any individuals and entities known to be interested in the project.
Under the Order, on September 30, 2021, Paragraph 8 will expire, which will reinstate CEQA’s ordinary posting, notice, public access, and interested party engagement requirements. (For more information on Executive Order N-54-20 Paragraph 8, please refer to our in-depth discussion of this provision.)
AB 52 Suspensions to Expire September 30, 2021
Executive Order N-54-20, Paragraph 9, extended the timeframe within which a California Native American tribe must request consultation and the lead agency must begin the consultation process related to an environmental impact report, negative declaration, or mitigated negative declaration for 60 days. Based on the plain language of Executive Order N-54-20, the AB 52 extension seemed to require a single 60-day extension, but the language of the Order suggests that it was instead a rolling deadline extension.
Under the Order, the 60-day extension will expire on September 30, 2021. To the extent any timeframe within which a California Native American tribe must request consultation and the lead agency must begin the consultation process extends beyond September 30, 2021, the tribe and lead agency will receive the benefit of the initial extension, so long as the triggering event occurs on or before September 30. (For more information on Executive Order N-54-20 Paragraph 9, please refer to our in-depth discussion of this provision.)
Bagley-Keene Act and Brown Act Modifications to Expire September 30, 2021
Executive Order N-29-20, Paragraph 3, adjusted requirements of the Bagley-Keene Act and Brown Act to permit agencies to hold public in-person meetings electronically or by phone and suspended physical presence requirements. Paragraph 3 also suspended the requirement for agencies to post agendas at all teleconference locations and set modified accessibility and noticing requirements. The Order sets a September 30, 2021 sunset date for these modifications, after which time public meetings that expressly or impliedly must be physically attended will resume in person.
Executive Order N-35-20, Paragraph 2, also relaxed Bagley-Keene Act and Brown Act requirements by allowing members of local or state legislative bodies to receive updates related to the COVID-19 pandemic and ask questions without violating the Brown Act or the Bagley-Keene Act. The Order sunsets this provision on September 30, 2021.
Homeless Shelter CEQA Exemption to be Lifted September 30, 2021
Executive Order N-32-20, Paragraphs 1, 2, and 3, included a series of actions designed to protect homeless populations from COVID-19. As relevant to land use practice, Paragraph 3 suspended CEQA for any project using Homeless Emergency Aid Program Funds, Homeless Housing, Assistance and Prevention Program funds, or funds appropriated in SB 89 (2020). The Order sets a September 30, 2021 sunset date for these provisions.
Permit Streamlining Act/California Coastal Act Suspensions are Still in Effect
Executive Order N-52-20, Paragraph 10, suspended the time limits for certain Permit Streamlining Act and California Coastal Act actions by or before the California Coastal Commission and State Water Resources Control Board for 60 days.
Although the Order sets sunset dates for other, unrelated provisions of Executive Order N-52-20, it did not overturn or set a sunset for Paragraph 10’s 60-day suspension. The plain language of Executive Order N-52-20 is similar to Executive Order N-54-20 (the plain language of which established a single 60-day extension for AB 52 deadlines). However, as noted above, the Order seems to indicate that the AB 52 extension was originally intended as a rolling deadline extension. Given the similarities between the two 60-day extension and because the Order does not sunset the Permit Streamlining Act and California Coastal Act extension in Executive Order N-52-20, it is unclear whether the time limits set forth in the Permit Streamlining Act in Government Code sections 65943, 65950, 65952, and 65956, and in Public Resources Code sections 30512, 30513, 30603, 30606, 30621, 30622, 30625, 30714, and 30812 continue to be suspended by an additional 60 days after their ordinary time periods have concluded.