Digital CEQA: New Executive Order Creates An Alternative Path For Complying With CEQA Notice, Posting And Public Review Requirements
On April 23, 2020, California Governor Gavin Newsom issued Executive Order N-54-20 (EO) which, in part, addresses an outstanding question related to the California Environmental Quality Act’s (CEQA) “public review” requirements, which quickly became problematic upon closure of the locations typically used to house and post CEQA-related documents. These closures, which impact government buildings like the County Recorder’s Office, are just one of the many consequences of the COVID-19 pandemic and resultant stay-at-home orders issued in an attempt to safeguard the public and flatten the curve. Under this EO, while the time periods for public review remain the same, all requirements related to public filing, posting, notice, and public access to draft and final documents set forth in CEQA and the CEQA Guidelines, are exempted and suspended for the next 60 days (until June 22nd), including the Notice of Preparation, Notice of Comment Period, Notice of Intent to Adopt an EIR, Negative Declaration/Mitigated Negative Declaration, Notice of Determination and Notice of Exemption so long as certain substitute procedures are followed.
This EO adds to the series of local and statewide decisions that attempt to keep development moving, where possible. Since March 4, 2020, when Governor Newsom first proclaimed the COVID-19-related State of Emergency, many jurisdictions indicated that – despite the changing protocols and procedures – processing and approving development remains an important goal. Although government offices are closed to the public, the planning and development departments in many cities and counties continue to evaluate and issue various development permits. Additionally, many jurisdictions have made the switch to holding live-broadcast or online public hearings with alternative methods for public participation. Whether it is a permit approval to develop more housing supply, affordable housing or a new medical facility, with this EO in place, lead agencies and applicants can be further assured that projects subject to CEQA will not be stalled at the public noticing and commenting phases, helping to provide needed jobs and tax revenue during this period of record high unemployment and growing public deficits.
Specifically, during this 60-day exemption and suspension of the requirements for physical notice, posting and public access to paper copies of documents at specified locations, a lead agency, responsible agency or project applicant (as applicable) remains in compliance with CEQA procedural requirements if they make these relevant materials available to the public through all of the following means:
Post such materials on the relevant agency’s or applicant’s public-facing website for the same period of time that physical posting would otherwise be required;
Submit all materials electronically to the State Clearinghouse CEQAnet Web Portal; and
Engage in outreach to any individuals and entities known by the lead agency, responsible agency or project applicant to be parties interested in the project in the manner contemplated by the Public Resources Code sections 21100 et seq. and CEQA Guidelines sections 15000 et seq.
The EO does not require, but encourages agencies and project applicants to pursue additional methods of public notice and outreach as appropriate for particular projects and communities. Examples include applicants hosting on-line community group meetings to reach out to the public and agencies giving a phone number for persons to call to get a flash drive copy of a draft or final CEQA document in the event the person does not have access to the internet.
The EO additionally suspends the timeframes set forth in Public Resources Code sections 21080.3.2 and 21082.3 related to the California Native American tribes to request consultation regarding an Environmental Impact Report, Negative Declaration, or Mitigated Negative Declaration under CEQA and for the lead agency to begin such consultation for additional 60 days.
 See Public Resources Code §§ 21092.3 and 21152, and CEQA Guidelines §§ 15062(c)(2) and (c)(4), 15072(d), 15075(a) and (d)-(e), and 15094(a), (d)-(e).