In response to COVID-19’s impact on the California legal system, the Judicial Council of California adopted emergency regulations that significantly extend the time individuals have to file lawsuits challenging the approval of development projects.
Understanding these regulations is crucial to identifying when development can proceed. Normally, CEQA allows potential litigants 30 days to challenge the certification of an EIR or approval of a Mitigated Negative Declaration and try to set aside the related project approvals if the approving agency files a Notice of Determination (NOD), or 35 days to challenge an agency’s exemption finding and project approvals if a Notice of Exemption (NOE) is filed by the lead agency. Even when no notice is filed, CEQA requires lawsuits alleging a violation of its statutes be filed within a relatively short timeframe of 180 days. These short statutes of limitations provide a degree of certainty for developers and public agencies that allows them to proceed with project implementation.
The Judicial Council’s response to the pandemic significantly extends those typically short statutes of limitation and the associated assurance that development can proceed. On April 6, 2020, the Judicial Council approved Emergency Rule 9, which originally paused the statutes of limitation for all civil causes of action, including CEQA’s statutes of limitations, until 90 days after the Governor lifts the state of emergency related to the COVID-19 pandemic. As originally written, this Emergency Rule had no clear end date, and the 90-day extension created a situation under which it was impossible to identify when a CEQA statute of limitation would begin to run, creating uncertainty for developers and public agencies regarding exposure to possible litigation and the possible impacts on project implementation.
Although the statute of limitations countdown does not start during this tolling period, agencies should still comply with all CEQA notice requirements and should continue to file NODs and NOEs as appropriate.
In response to concerns, the Judicial Council revised Emergency Rule 9 effective May 29, 2020, to toll CEQA’s statutes of limitations until August 3, providing a framework for interested parties to plan around and within. This effectively means that if the statute of limitations did not fully run prior to April 6, the statute of limitations “paused” April 6 and will start running again on August 3. For projects that filed an NOD or NOE between April 6 and August 3, 2020, the statute will not start to run its 30 days or 35 days, respectively, until August 3.
Similarly, in the event no notice is filed for a project approved on or after April 6, the 180-day statute of limitations will generally apply, and the days will start counting after August 3. While this results in a significant extension of the CEQA statute of limitations from the 30-day period when an NOD is filed to a more than 5-month period, the clarification provides some certainty for resuming development, consistent with the principles and intent of CEQA.
Given the uncertainty of the pandemic, CEQA and its impact during COVID-19 are necessarily fluid.
Although the statute of limitations countdown does not start during this tolling period, agencies should still comply with all CEQA notice requirements and should continue to file NODs and NOEs as appropriate. This will demonstrate compliance with CEQA’s notice requirements and ensure that the applicable short statute of limitations begins running as soon as Emergency Rule 9 is no longer in effect, rather than the 180-day statute.
Given the uncertainty of the pandemic, CEQA and its impact during COVID-19 are necessarily fluid. Accordingly, businesses and other organizations across California should carefully monitor new orders and updates issued by the judicial branch and by State and local agencies, as well as evaluate their effects on CEQA litigation and deadlines in California courts.
FirstCarbon Solutions [FCS] comprises over 100 individuals offering due diligence, technical analysis, planning, environmental compliance, permitting, and mitigation/monitoring services for public and private projects. FCS has more than 30 years of experience navigating the complexities of CEQA and securing project approvals. Our technical and legal teams are ready to provide assistance and guidance in moving your project forward. Contact us for a free consultation to find out how we can help with your specific project requirements.