Trump Signs Executive Order Allowing Agencies to Bypass NEPA, ESA, and CWA Requirements

On June 4, 2020 President Trump signed an Executive Order titled “Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities,” allowing—and, in fact, directing—federal agencies to circumvent environmental permitting requirements in order to expedite infrastructure projects. The Order is based on the President’s March 13, 2020 declaration of national emergency due to the Novel Coronavirus Disease (“COVID-19”) outbreak and the resulting dramatic downturn in the economy; apparently, the administration concluded that “without intervention, the United States faces the likelihood of a potentially protracted economic recovery with persistent high unemployment.”

The Order directs federal agencies to take all reasonable measures to speed infrastructure investments in order to strengthen the economy. It focuses on expediting the delivery of transportation infrastructure projects, civil works projects, and projects on federal land, directing the Secretaries of Transportation, the Army, Defense, the Interior, and Agriculture to “use all relevant emergency and other authorities to expedite work on, and completion of, all authorized and appropriated” highway and other infrastructure projects; civil works projects; and infrastructure, energy, environmental, and natural resources projects on Federal lands that are within the authority of each of the Secretaries to perform or to advance. Continue Reading

COVID-19 Alert: Judicial Council Amends Emergency Rule 9 for CEQA and Planning Cases

On May 29, 2020, the Judicial Council of California issued a Circulating Order to amend its earlier-issued Emergency Rule 9 in order to shorten the time for tolling statutes of limitations for all civil causes and provide a fixed date, including for causes of action arising under the California Environmental Quality Act (CEQA) and State planning and zoning laws.   Under the amended Emergency Rule 9, the tolling period for civil actions with limitations periods that are less than 180 days—which includes most CEQA and planning and zoning law claims—expires on August 3, 2020.  This clarifies and dramatically reduces the time within which complaining parties must file civil litigation to challenge most CEQA and related land use approvals.

As we noted earlier, on April 6, 2020, the Judicial Council of California issued Emergency Rules to address impacts of the COVID-19 pandemic on the judicial branch.  This included Emergency Rule 9, which tolled the time to file any type of civil litigation from April 6, 2020, to until 90 days after the Governor lifts the state of emergency for the COVID-19 pandemic.  This created enormous uncertainty related to land use matters and CEQA actions, as the time to file such challenges is unusually short (30 to 90 days) and it is entirely unclear when the Governor might lift the state of emergency.  Emergency Rule 9 threatened to extend the limitations periods for CEQA and land use claims by months. Continue Reading

Second Appellate District Expands Baseline Analysis in Upholding Environmental Impact Report for Refinery Project Intended to Help Reduce Air Pollutants

Last month, the Second Appellate District upheld the South Coast Air Quality Management District’s (“Air District”) Environmental Impact Report (“EIR”), which the Air District prepared to analyze the environmental impacts of a refinery project that was intended to increase compliance and help reduce air pollution.  Communities for a Better Environment v. So. Coast Air Quality Mgmt. Dist., Case No. B294732 (Apr. 7, 2020).  The project applicant owns and operates two adjacent oil refining facilities in Southern California, and sought to improve the integration of both facilities to allow flexibility in product outputs, which also increased the refinery’s compliance with air regulations, and thus helped reduce air pollutants.  As explained in greater detail below, the decision is particularly noteworthy because the court appears to have expanded the “baseline” analysis tied to air emissions, which is used to measure pre-project vs. post-project impacts to the existing environment.

The Air District’s review of the underlying project took three years and the Air District’s Draft EIR was the subject of over 2,000 public comments, which included comments totaling 1,112 pages from the plaintiff that later challenged the project.  Significantly, 1,798 comments or 85% supported the project—likely because the EIR found that the main environmental impact of the project would be to reduce air pollution; and the Air District’s Final EIR was lengthy and robust, containing 6,075 pages of public comments alone. Continue Reading

Third Appellate District Voids City Council Vote Based on Legislative Member’s Bias

On May 8, 2020, the Third Appellate District, certified for publication its earlier decision in Petrovich Development Co. LLC v. City of Sacramento (C087283), where the Court, in a rare decision, voided a city council’s denial of a  conditional use permit (CUP) upon finding that one of the councilmembers was impermissibly biased against the project; thus, denying the project applicant a “fair hearing.”  The city councilmembers, when acting in a quasi-judicial capacity as adjudicators of matters on appeal from an administrative body, are required as decision-makers to be “neutral and unbiased.”  This implies that “the decisionmaker has no conflict of interest, has not prejudged the specific facts of the case, and is free of prejudice against or in favor of any party.”  But here, one of the city councilmembers entered the deliberations on the issue with his mind already made up, and the court found that the councilmember’s actions prior to the hearing and the vote “crossed the line into advocacy against the project.”  As such, the project applicant was not afforded a “fair hearing,” and the council’s denial of the CUP was invalidated. Continue Reading

Twenty-Two Environmental Groups and Nineteen Jurisdictions File Suit in Three District Courts Challenging The 2020 WOTUS Rule

Last week, environmental groups, states, and cities filed three complaints in differing federal district court challenging The Navigable Waters Protection Rule: Definition of Waters of the United States (“WOTUS”) (“2020 WOTUS Rule”), which was published in the Federal Register on April 21, 2020, and is currently scheduled to become effective on June 22, 2020.  Pursuant to the Supreme Court’s ruling in National Association of Manufacturers v. U.S. Dep’t of Defense, 138 S.Ct. 617, challenges to the 2020 WOTUS Rule must be brought in the federal district courts.  The challenges, therefore, can and likely will simultaneously make their way through various circuits, perhaps with different results, dashing hopes that the 2020 WOTUS Rule would finally provide the regulated community with clarity and consistency regarding the scope of waters regulated under the Clean Water Act (“CWA”). Continue Reading

Governor Newsom Issues Order Requiring Electronic Posting of CEQA Notices and Suspending CEQA Filing, Posting, Notice, and Tribal Consultation Requirements for 60 Days

On April 23, 2020, Governor Newsom signed Executive Order N-54-20 (the “Order”) in response to the COVID-19 pandemic, which eased procedural legal requirements as to a variety of types of civil actions, including CEQA cases.  In order to combat the COVID-19 pandemic, the Governor has proclaimed a State of Emergency, and shelter in place orders have required state and local governments and members of the public to implement social distancing protocols statewide.  Recognizing that physical distancing protocols may prevent lead agencies, responsible agencies, and project applicants from complying with CEQA’s public filing and noticing requirements, the Order suspends all such requirements for 60 days, until June 22, 2020.  The suspension does not apply to provisions governing the timeline for public review.  It also does not apply to the requirement to publish and mail notices of preparation to interested parties and contiguous property owners and occupants. Continue Reading

To VMT or not to VMT? Third District Says Level of Service No Longer Valid to Measure Traffic Impacts, But Use of Vehicle Miles Traveled is Not Yet Required

The Third District Court of Appeals recently weighed in on the interpretation of Public Resources Code section 21099(b)(2) (“Section 21099(b)(2)”) and newly enacted CEQA Guidelines section 15064.3, which govern the consideration of traffic impacts under CEQA. In Citizens for Positive Growth & Preservation v. City of Sacramento (2019) 43 Cal.App.5th 609 (“Citizens”), the Court determined that although Guidelines section 15064.3 does not become effective until July 1, 2020, Section 21099(b)(2) already prevents lead agencies from relying on impacts to vehicle delay to determine that traffic impacts are significant.

The Petitioner challenged the environmental impact report (EIR) prepared for an amendment to the City of Sacramento’s General Plan, alleging, among other things, that the project would increase congestion on city streets and would therefore have a significant impact on the environment. The Court disagreed, finding that level of service (LOS)—a method of determining traffic impacts based on congestion and wait times at intersections—is no longer valid under CEQA. Continue Reading

After Months of Delay The 2020 WOTUS Rule is Finally Published, Ensuring the California Regulated Community Receives No Relief Associated with the Rule’s Bright Lines and Clarifications

On April 21, 2020, The Navigable Waters Protection Rule: Definition of Waters of the United States (“WOTUS”) (“2020 WOTUS Rule”) was published in the Federal Register, and will become effective on June 22, 2020. Publication of the 2020 WOTUS Rule in the Federal Register is the final step in the Trump Administration’s repeal and replacement of the 2015 Waters of the United States Rule (“2015 WOTUS Rule”), issued under the Obama Administration. Due to litigation that ultimately resulted in a stay of the 2015 WOTUS Rule prior to the effective date, that rule never became effective nationwide. Continue Reading

Two CEQA Statute of Limitations Cases, Two Different Results

CEQA Statute of Limitations

California Courts of Appeal recently issued two cases addressing the strict statute of limitations applicable to agency action under CEQA.

Citizens for a Responsible Caltrans Decision v. Department of Transportation –  (March 24, 2020, D074374) __ Cal.5th__

The Fourth District in Citizens for a Responsible Caltrans Decision v. Department of Transportation overturned a lower court’s dismissal of a citizen group’s challenge to an exemption issued by California Department of Transportation (“Caltrans”) for a highway interchange project in San Diego, finding that the Petitioner had pled facts sufficient to allow the lower court to find that the action was timely, and finding as a matter of first impression that the Project was not exempt from CEQA.  This case is a good reminder that courts will strictly scrutinize agency action that appears designed to deceive the public, even if well-intended. Continue Reading

COVID-19 Alert: Judicial Council Issues Sweeping Emergency Rules; Local Agencies Issue Regional Changes

In response to the COVID-19 pandemic, the state and several local jurisdictions have issued orders/rules in the last few weeks that affect not only the timing of processing land use and planning entitlements, but also the filing of California Environmental Quality Act (CEQA) and other claims challenging land use projects and approvals in California courts. The situation is fluid, but this entry summarizes some of the major orders affecting planning and CEQA deadlines.

In one of the most significant developments, on April 6, 2020, the Judicial Council of California issued Emergency Rules to address impacts of the COVID-19 pandemic on the judicial branch. Among other things, the Judicial Council added emergency rule 9 to the Rules of Court, which tolls the time to file any type of civil litigation from April 6, 2020 until 90 days after California Governor Gavin Newsom lifts the state of emergency for the COVID-19 pandemic. This is a significant time extension for many civil case types, and CEQA claims in particular, as they otherwise must be filed within 30 or 35 days of agency action. In practice, this means that project proponents and lead agencies will likely have a longer period of uncertainty related to whether a project will be challenged in court, both during the state of emergency and for some time afterward. Continue Reading

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