California Executive Order Suspends Certain CEQA Noticing and Posting Requirements

In response to COVID-19, on April 23, 2020, California Gov. Gavin Newsom issued Executive Order N-54-20, which, among other things, suspends for 60 days (starting April 23, and ending June 22, 2020) certain noticing and posting requirements under the California Environmental Quality Act (CEQA). The order also suspends certain tribal consultation timeframes under CEQA. Finally, the order imposes certain public access and engagement requirements during the 60-day suspension period.

Suspension of Certain CEQA Noticing and Posting Requirements

Paragraph 8 of Executive Order N-54-20 suspends through June 22 certain public filing and notice requirements under CEQA and the CEQA Guidelines, summarized as follows:

• Public Resources Code § 21092.3, which requires the county clerk to post for 30 days a lead agency's notice of preparation and notice of availability of an environmental impact report, and to post for 20 days a lead agency's notice of intent to adopt a negative declaration
• Public Resources Code § 21152, which requires 1) the lead agency to file a notice of determination within five days following its decision to approve or carry out a project, 2) the lead agency to file a notice of exemption if it determines that a project it approves or decides to carry out is exempt from CEQA and 3) the county clerk to post such notices for 30 days
• CEQA Guidelines § 15062(c)(2) and (c)(4), which require the county clerk to post for 30 days notices of exemption filed by a lead agency or project applicant
• CEQA Guidelines § 15072(d), which requires the county clerk to post for 20 days a notice of intent to adopt a negative declaration or mitigated negative declaration
• CEQA Guidelines § 15075(a), (d) and (e), which require 1) a lead agency to file with the county clerk a notice of determination within five days following approval of a project for which a negative declaration or mitigated negative declaration was approved and 2) the county clerk to post any such notice of determination for 30 days
• CEQA Guidelines § 15087(d), which requires the county clerk to post for 30 days a lead agency's notice of availability of an environmental impact report for public review
• CEQA Guidelines § 15094(a), (d) and (e), which require 1) a lead agency to file with the county clerk a notice of determination within five days following approval of a project for which an environmental impact report was certified and 2) the county clerk to post any such notice of determination for 30 days

Notably, the order does not suspend any of CEQA's timing requirements regarding public review periods for draft environmental impact reports, negative declaration or mitigated negative declaration.

Public Access and Engagement Requirements While Suspensions are in Effect

The order is clear that its suspension of certain noticing and posting requirements is not intended to suspend CEQA processing altogether. Paragraph 8 sets forth substitute public access and engagement requirements that apply during the suspension period in lieu of the requirements of the suspended CEQA and CEQA Guidelines provisions.

Specifically, with respect to any of the above-listed CEQA and CEQA Guidelines that require the public posting or filing of materials with the county clerk or require making materials available to the public, the order obligates the lead agency, responsible agency or project applicant (as applicable) to undertake all of the following actions during the 60-day suspension period:

• Post such materials on the relevant agency's or project applicant's public-facing website for the same period of time that physical posting would otherwise be required
• Submit all such materials electronically to the State Clearinghouse CEQAnet Web Portal  
• Engage in outreach (presumably, remotely) to any individuals and entities known by the lead agency, responsible agency or project applicant to be parties interested in the project

In addition, Paragraph 8 encourages, but does not require, lead agencies, responsible agencies and project applicants "to pursue additional methods of public notice and outreach as appropriate for particular projects and communities."

Suspension of Certain Tribal Consultation Requirements

Paragraph 9 of Executive Order N-54-20 suspends through June 22 certain tribal consultation timing requirements under CEQA, summarized as follows:

• Public Resources Code § 21080.3.1, which requires that 1) a lead agency, within 14 days after determining a project application complete, to notify tribal representatives of such application, 2) tribal representatives respond to such notice within 30 days following receipt thereof if they wish to engage in consultation and 3) a lead agency commence consultation within 30 days following receipt of a request for consultation from tribal representatives
• Public Resources Code § 21082.3, which, among other things, limits a lead agency's authority to certify an environmental impact report or adopt a negative declaration or mitigation declaration until after either 1) the conclusion of the tribal consultation process required by Public Resources Code §§ 21080.3.1 and 21080.3.2, 2) the tribal representatives have failed to engage in consultation despite requesting such consultation in accordance with Public Resources Code § 21080.3.1 or 3) the lead agency has notified tribal representatives of a complete project application in accordance with Public Resources Code § 21080.3.1, but the tribal representatives have failed to request consultation within 30 days following such notice

Please email or otherwise contact our California COVID-19 Team for legal assistance regarding Executive Order N-54-20 or other COVID-19 topics.

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