The Biden Administration is amending the federal regulations for implementing the National Environmental Policy Act (NEPA) to reverse certain changes made by the Trump Administration. The first set of amendments took effect last Friday on May 20, 2022.
Alex Merritt is a partner in the Real Estate, Environmental, and Land Use Practice Group in the firm's San Francisco office.
On Friday, November 12, 2021, the Association of Bay Area Government’s (“ABAG’s) Administrative Committee formally denied 27 out of 28 appeals of draft housing allocations filed by local jurisdictions within the Bay Area region. In approving final written denials for nearly all appeals filed by cities and counties within the Bay Area, the Committee signaled strong confidence in the draft Regional Housing Needs Allocation (“RHNA”) Plan prepared by ABAG’s Housing Methodology Committee and approved in May. Local jurisdictions in the Bay Area must now incorporate the Plan’s housing allocations into their Housing Elements.
Continue Reading Association of Bay Area Governments Formally Denies Nearly All Regional Housing Needs Allocation Appeals
In an earlier post, we covered the local Shelter-in-Place (“SIP”) orders, which severely restricted construction activities throughout the Bay Area. This week the participating jurisdictions (Alameda, Contra Costa, Marin, San Francisco, San Mateo, and Santa Clara Counties) updated their SIP orders to ease restrictions on construction. The changes took effect May 4 and will continue through May 31, unless further modified.
Continue Reading New Bay Area COVID-19 Orders Ease Restrictions on Construction and Impose New Safety Protocols
As state and local governments act to address the economic fallout of the COVID-19 pandemic, relief for renters impacted by the coronavirus has come from both state and local policymakers. In previous posts, we covered San Francisco’s and San Diego’s efforts to temporarily ban evicting residential and commercial tenants impacted by COVID-19. In this post, we explain Governor Gavin Newsom’s Executive Order, issued on March 27, creating a statewide moratorium on evicting renters impacted by COVID-19. Here are key takeaways from the statewide Executive Order.
Continue Reading State-Level Rent Relief Due to COVID-19 Impacts: California Governor Newsom’s Executive Order Explained
As the number of COVID-19 cases continues to rise, state and local officials in California are taking increasingly aggressive action to stop the virus’ spread through Shelter-in-Place (“SIP”) orders. In addition to Governor Newsom’s statewide SIP order, six Bay Area counties – San Francisco, Santa Clara, San Mateo, Marin, Contra Costa, and Alameda – have issued more restrictive local SIP orders. New versions of these local orders, published on March 31st and substantially identical, clarify uncertainties in prior orders and dramatically narrow the scope of allowable construction projects. These new orders are in effect from April 1st through May 3rd, but are subject to further extension.
Continue Reading New Shelter-in-Place Orders Dramatically Restrict Bay Area Construction, Including Residential Projects
As of the beginning of April, more than one million Californians have applied for unemployment assistance. While state and local officials are seeking to address this aspect of the economic fallout of the COVID-19 pandemic in a number of ways, renter protections are among the most visible measures to emerge. In San Francisco, Mayor London Breed issued a series of Declarations temporarily banning commercial and residential evictions if the tenant cannot pay rent due to COVID-19 impacts. Here are important takeaways from the Declarations.
Continue Reading San Francisco Temporarily Bans Evicting Residential and Commercial Tenants Impacted by COVID-19 Epidemic
A federal district court has ruled that the Bureau of Land Management (“BLM”) failed to adequately consider climate change when approving a set of oil and gas leases on public lands in Wyoming. The ruling should be of broader interest to developers and energy companies because it offers guidance on how to properly analyze a project’s effects on climate change under the National Environmental Policy Act (“NEPA”). The law in this area remains unsettled –especially since President Trump rescinded the Obama Administration’s formal guidance on NEPA and climate change in 2017. Future developments are likely, and project sponsors should monitor them closely.
At issue in the case are oil and gas leases covering 300,000 acres of public lands in Wyoming. For each lease sale, BLM prepared an environmental assessment to comply with NEPA. The environmental assessments discussed climate change on a “conceptual level,” without quantifying and analyzing the greenhouse gas emissions that would result from the lease sales. The court found the analysis inadequate under NEPA, and it halted drilling under the leases and sent the matter back to BLM for additional environmental review. In its lengthy ruling, the court offered concrete guidance to BLM on how to fix its analysis of greenhouse gas (“GHG”) emissions and climate change on remand, including that:
- BLM should quantify GHG emissions that would result from drilling oil and gas wells on the leased parcels.
- BLM should provide more detail about “downstream” GHG emissions that would result from the consumption of oil and gas produced under the leases.
- BLM should better evaluate the “cumulative” effect of the leases together with other projects, including by comparing GHG emissions from the leases against available emissions forecasts and other BLM programs.
This guidance may also serve as a useful roadmap to NEPA compliance for other projects, particularly other energy projects. And development opponents are likely to use the court’s reasoning to challenge future NEPA documents. Below we break down the court’s direction on three categories of GHG emissions, each requiring a different level of detail.
Continue Reading District Court Provides Guidance On Climate Change Analysis Under NEPA
The Governor’s Office of Planning and Research (“OPR”) has spent five years drafting a comprehensive update to 30 sections of the California Environmental Quality Act (“CEQA”) Guidelines. The updated text (“Final Text”) ensures the Guidelines are consistent with recent court decisions, implements legislative changes, clarifies rules governing the CEQA process, and eliminates duplicative analysis. Several changes to the Guidelines address two hot button topics: global climate change and statewide affordable housing shortages. During the deliberative process, the Agency also released its “Final Statement of Reasons for the Regulatory Action Amendment to the State Guidelines” to give more history and context to each change to the Final Text.
Berkeley Hillside Preservation v. City of Berkeley (2015) ___ Cal.4th ___, Case No. S201116
This week the California Supreme Court issued its long-awaited decision in the Berkeley Hillside case, which considered whether the City of Berkeley properly exempted a large single-family home on a hillside lot from CEQA review. The court’s lengthy opinion announced a new two-part test for the “unusual circumstances exception” to CEQA exemptions and the applicable standards of review. In doing so, the court not only reversed the First District Court of Appeal, but also resolved several other conflicting interpretations of the unusual circumstances exception. The case is important for agencies and developers because the new test will apply generally to categorical exemptions, and as discussed below, it suggests a strategy for defending against potential challenges to exemptions.
Continue Reading California Supreme Court Announces New Test for CEQA “Unusual Circumstances” Exception
The U.S. Army Corps of Engineers, South Pacific Division, has issued its “Final 2015 Regional Compensatory Mitigation and Monitoring Guidelines.”
The Guidelines will apply in the Corps’ San Francisco, Sacramento, Los Angeles, and Albuquerque districts, which together cover California, Nevada, Utah, New Mexico, and parts of Colorado and Texas.…
People for the Ethical Treatment of Property Owners v. U.S. Fish and Wildlife Service; et. al., (11/05/14, 2:13-cv-00278-DB)
In a significant Endangered Species Act case, the Utah District Court has ruled that Congress may not regulate take of the threatened Utah prairie dog, a purely intrastate species, on non-federal land. The court found that the challenged regulation went beyond the scope of the Commerce Clause because it was a non-economic regulation and the take of prairie dog does not have a substantial effect on interstate commerce.…