Legislation

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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.

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…

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.

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.

On the heels of its notice of federal rulemaking under the National Environmental Policy Act (see our July 2 blog post) and other more modest efforts at reform on the administrative level, the Administration on July 19 announced a series of proposed changes to the regulations governing administration of the federal Endangered Species Act…

On June 20, 2018, the White House Council on Environmental Quality (CEQ) issued an advanced notice of proposed federal rulemaking, soliciting public comments on whether and how CEQ should update its National Environmental Policy Act (NEPA) implementing regulations. Comments on the proposed rulemaking are due July 20, 2018.

On January 12, 2018, the First Appellate District held that the California Attorney General need not exhaust administrative remedies in order to contest the adequacy of Environmental Impact Reports (EIRs) under the California Environmental Quality Act (CEQA), as is normally required of third-party challengers under Section 21177.  City of Long Beach v. City of Los Angeles, Case No. A148993 (2018).  The Appeals Court also held that BNSF Railway Company’s (BNSF) proposed construction of a new railyard in Southern California failed to adequately consider air quality impacts from the project.  The case emphasizes the need for EIRs to consider impacts to ambient air pollutant concentrations and the cumulative impacts of such pollutants under CEQA, even if the underlying analysis may be time consuming and difficult to generate.

On July 17, 2017 the California legislature approved an extension of the state’s greenhouse gas cap-and-trade program from 2020 to 2030.  Cap-and-trade is a key program in the state’s efforts to meets its 2030 greenhouse gas reduction goals of 40% below 1990 levels covering emissions from industrial facilities and electricity and natural gas suppliers.

Governor Brown and legislative leaders have worked for several months on a package of bills that could achieve a 2/3 majority in the legislature, insulating the cap-and-trade program from additional challenges under Proposition 13 and providing the state with considerable discretion in spending revenues generated by the program.  This grand bargain includes a cap on the price of emission allowances sold under the program, measures to reduce emissions of non-greenhouse gas pollutants from industrial facilities and refineries, an increase in maximum penalty for violations of state air rules, and tax credits for energy producers.  In extending cap-and-trade, the legislation also blocks an effort by the Bay Area Air Quality Management District (“BAAQMD”) to cap greenhouse gas emissions from Bay Area refineries.

LegislationOn August 26, Governor Brown signed SB 734 into law, extending by two years the sunset date of the Jobs and Economic Improvement Through Environmental Leadership Act of 2011 (the “Act”) – from January 1, 2017 to January 1, 2019 – and making two significant changes to the Act.

The Act, codified at Public Resources Code sections 21178-21189.3, promotes environmentally sustainable development having significant economic benefits by providing for streamlined judicial review of “environmental leadership development projects.” Such leadership projects include certain residential, commercial, cultural, sports, and recreational projects located at infill sites that (1) are certified as LEED Silver or better, (2) result in a minimum investment of $100 million in California, (3) create high-wage, highly skilled jobs that pay prevailing wages and living wages, and help reduce unemployment, and (4) do not result in any net additional emission of greenhouse gases.