OPR Issues Guidance and Information Regarding CEQA and COVID-19 and California Judicial Council Tolls Statutes of Limitations
The Governor’s Office of Planning and Research (OPR) has issued guidance and information regarding the California Environmental Quality Act (CEQA) and COVID-19. The guidance and information is available on OPR’s CEQA website at the following link: http://opr.ca.gov/ceqa/. OPR first notes that there has not been a change in CEQA’s deadlines, noticing, or filing requirements and that the State Clearinghouse is still operating every weekday from 9 am to 4 pm. OPR’s guidance and information then focuses on CEQA meetings and public review of documents.
In addition, while not discussed in OPR’s guidance, on April 6, 2020, the California Judicial Council approved 11 temporary emergency rules, extending deadlines and providing for remote litigation proceedings (Emergency Rules) which may have an impact on the timing of CEQA lawsuits.
OPR’s Recommendations for CEQA Meetings
For public meetings subject to the Bagley-Keene Open Meeting Act and the Ralph M. Brown Act, OPR notes that the Governor’s Executive Order N-29-20 (EO) authorized public meetings “via conference call or electronically” and waived “any requirements around a physical presence of members or staff at a public location” while social distancing is imposed or recommended. AALRR Alerts addressing requirements for public meetings are located here.
For a scoping meeting and other meetings that are not specifically governed by open meetings laws, OPR encourages lead agencies “to use all of the technology tools available to them to engage as many members of the public as possible,” and suggests, as one possibility, using teleconference platforms.
An informal survey of recent public meetings over the last few weeks shows public agencies conducting meetings using teleconference, video conference, email (for public comment), and in-person meeting (if authorized under applicable health orders and recommendations, including social distancing requirements), or through some combination of these practices.
OPR's Guidance on Public Review of CEQA Documents and Extensions of Public Review and Comment Periods
OPR notes that one primary avenue for public review of CEQA documents may not be feasible at this time. Specifically, OPR cites CEQA Guidelines section 15087(g) which provides that “[l]ead agencies should furnish copies of draft EIRs to public library systems serving the area involved” and then notes that many libraries are closed at this time.
According to OPR, lead agencies “should be considering other methods to make CEQA documents publicly available, such as posting on the Internet and on CEQAnet, that do not require the public to obtain copies in person.” It is therefore important for lead agencies and project applicants to review CEQA’s requirements regarding public review of CEQA documents to determine whether reasonable alternatives are available in situations where public review may be infeasible, either due to facility closures or “stay at home” orders.
In addition, OPR is encouraging lead agencies to consider extending “public review and comment periods for CEQA documents, such as notices of preparation and EIRs.” OPR believes that these extensions may be appropriate as a result of the new methods that lead agencies are using to make CEQA documents available for public review in light of the COVID-19 pandemic.
County Clerk Closures May Affect Filings and Postings
Although OPR remains open, lead agencies and project applicants will need to determine how their applicable County Clerk office is operating for filing and posting of CEQA-required notices. Many County Clerk offices are closed for over-the-counter services, but are continuing to accept CEQA notices by other methods (mail, online, drop box, etc.) and, for some, the CEQA postings are available for online viewing. Lead agencies and project applicants will need to check with their applicable County Clerk office to determine how it is accepting and posting CEQA notices because proper posting may affect public review periods and the running of applicable CEQA statute of limitations to file a lawsuit challenging the lead agency’s CEQA decision.
California Judicial Council Tolls Statutes of Limitation
In most instances, CEQA contains a short statute of limitations period for challenges to a lead agency’s CEQA decision. For example, when a Notice of Exemption is filed and posted, the statute of limitations period is 35 days after posting. On April 6, 2020, the California Judicial Council approved the Emergency Rules with Emergency Rule 9 tolling the statutes of limitation for “civil causes of action” from April 6, 2020 until 90 days after the Governor declares that the state of emergency related to the COVID-19 pandemic is lifted. CEQA parties will need to consider whether writs challenging CEQA decisions fall within the category of “civil causes of action” to determine whether the extension applies.
Our firm continues to monitor this situation to see if, as the COVID-19 pandemic winds down, the State Legislature attempts to pass legislation or Governor Gavin Newsom issues orders affecting statutes of limitation. Click here to read our prior legal alert regarding the Emergency Rules.
Lead agencies and project applicants should continue to stay aware of all state or local orders that may have an impact on the public’s ability to review and comment on a project’s environmental impacts. Our firm’s comprehensive set of COVID-19 alerts can be found here.