California Governor Gavin Newsom signed two climate disclosure bills into law on October 7, 2023. They will impose significant reporting obligations on thousands of companies doing business in California.

In an effort to address the city’s office vacancy and much-needed housing, the San Francisco Board of Supervisors approved the “Commercial to Residential Adaptive Reuse and Downtown Economic Revitalization” ordinance on June 27, 2023. On July 5, 2023, Mayor London Breed approved the ordinance, which will become effective on August 4, 2023.

The Internal Revenue Service published guidance on April 17, 2023, in the form of a Notice of Proposed Rulemaking, detailing the critical minerals and battery components requirements under Section 30D, enacted by the Inflation Reduction Act of 2022.

A recent decision highlights the importance of strict compliance with the Mitigation Fee Act’s requirement that findings be made every five years concerning unexpended fees.

For the first time and after much anticipation, the Environmental Protection Agency proposed National Primary Drinking Water Regulations for key "forever chemicals."

The Internal Revenue Service published a fact sheet clarifying changes in federal clean vehicle tax credits enacted through the Inflation Reduction Act in August 2022.

The U.S. Environmental Protection Agency and the U.S. Department of the Army jointly announced on December 30, 2022, the latest final rule that attempts to define “waters of the United States” under the Clean Water Act. The Rule will take effect 60 days after its publication in the Federal Register.

On December 6–7, 2022, the Bureau of Ocean Energy Management (BOEM) held its third offshore wind lease sale this year—and the first of its kind for floating wind—bringing in $757.1 million from five lease areas off the central and north coasts of California.

In what has become a near-annual ritual, California Governor Gavin Newsom has signed into law a large package of bills aimed at addressing the state’s glaring housing shortage.

The California Air Resources Board, on August 25, 2022, voted to adopt the lengthy and complex second iteration of the state’s ambitious zero-emission vehicle regulation now set to fully phase out the sale of conventional gas-powered vehicles by 2035.

Governor Gavin Newsom announced a revamped water strategy on August 11, 2022, in response to updated projections that California could witness a 10% reduction in water supply by 2040 due to the accelerated impacts of climate change.

President Biden signed into law the Inflation Reduction Act on August 16, 2022, which, among other things, uses the tax code to slow the effects of climate change by significantly investing in clean energy and reducing of greenhouse gas emissions by 40% by 2030.

The $437 billion Inflation Reduction Act, signed into law on August 16, 2022, by President Biden, makes historic investments in clean energy. The IRA allocates $369 billion toward energy security, carbon emissions reduction, and climate resilience.

Gov. Newsom signed AB 205 into law on June 30, 2022, a legislative effort that significantly expands the California Energy Commission’s jurisdiction and encourages the development of new clean energy projects.

In a notable decision interpreting the California Endangered Species Act, a California court of appeal ruled that insects are eligible for listing as threatened, endangered, or candidate species under the act.

The Bureau of Ocean Energy Management published its Proposed Sale Notice on May 31, 2022, for what would be the first ever offshore wind energy leases on the west coast of the United States.

The Bureau of Indian Affairs has proposed preliminary revisions to the regulations that govern the acquisition of land into trust for Indian tribes. The proposed revisions would streamline the fee-to-trust process and eliminate many important checks and balances that protect third-party interests.

Alan Murphy co-authored a book chapter titled “Housing” in California Land Use & Planning Law (38th edition, 2022).

A New Jersey based nonprofit organization, Save Long Beach Island, and its president sued in the U.S. District Court for the District of Columbia in January 2022.

The U.S. Environmental Protection Agency, on March 14, 2022, issued both a final rule incorporating revised ASTM International standard practices, ASTM International’s E1527–21 ‘‘Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process,’’ and a proposed rule soliciting comment on this action.

Offshore wind development in the United States continues to draw opposition from coastal landowners, businesses, organizations, and other users of ocean waters, as it has since the industry first emerged here.

The Infrastructure Investment and Jobs Act, signed into law by President Biden on November 15, 2021, has the potential to transform the surface transportation sector in the United States.

Governor Gavin Newsom signed a $15 billion legislative package on September 23, 2021, funding efforts to combat climate change in California over the next three years.

California Governor Gavin Newsom recently signed into law several bills intended to accelerate local approval of housing projects and increase housing production.

In California Renters Legal Advocacy and Education Fund v. City of San Mateo, the California Court of Appeal rejected a city’s interpretation of what constitutes an “objective” standard under the Housing Accountability Act (HAA), Government Code section 65589.5, and upheld the constitutionality of the law and amendments that strengthened it.

This update was published in American Planning Association: California Chapter Northern News "Calif. Court Upholds Limiting Local Governments’ Ability to Deny Housing Developments" on 09.20.2021.

Title VIII of the Infrastructure Investment and Jobs Act (H.R. 3684), the infrastructure bill recently passed by the U.S. Senate, includes several important amendments to Title 41 of the Fixing America’s Surface Transportation (FAST) Act, or FAST-41, which have the potential to significantly reform the federal environmental review and permitting process for covered infrastructure projects.

On July 20, 2021, the San Francisco Board of Supervisors unanimously approved an amendment to the San Francisco Commercial Eviction Moratorium Ordinance codifying a legal presumption to potentially provide rent relief to small businesses forced to shut down due to the COVID-19 pandemic.

On June 2, 2021, in response to a written request by a coalition of local government agencies, California Governor Newsom announced that N-29-20 will not terminate on June 15, and that state and local agencies can continue to conduct virtual public meetings as needed.

Despite relatively few published opinions this year, there were significant rulings on a range of topics, including whether projects are properly classified as discretionary or ministerial, the adequacy of mitigation, agencies’ document retention obligations, the remedy for an inadequate EIR, mootness, and statutes of limitations. Click here to read the full report.

Governor Gavin Newsom issued Executive Order N-80-20 on September 23, 2020, extending Executive Order N-28-20 through March 31, 2021, with respect to commercial evictions only. 

On Friday, May 22, the California Senate Judiciary Committee voted in favor of an amended version of SB-939, which would limit the rights of many commercial landlords to enforce certain provisions of their leases.

The six Bay Area counties that led the way in requiring their citizens to shelter in place on March 16 and again on March 31—Alameda, Contra Costa, Marin, San Francisco, San Mateo, and Santa Clara—issued new orders on April 29 extending many of the shelter-in-place requirements to May 31.  

Governor Gavin Newsom issued an executive order on April 22 suspending for a period of 60 days (1) the filing, posting, notice, and public access requirements related to certain notices under the California Environmental Quality Act, and providing for electronic posting; and (2) certain aspects of the consultation process with Native American tribes.

Last month, Governor Gavin Newsom signed an Executive Order which allows but does not require local governments to impose temporary limitations on residential and commercial evictions in certain COVID-19 related situations.

On March 31, six Bay Area counties—Alameda, Contra Costa, Marin, San Francisco, San Mateo, and Santa Clara—jointly issued new shelter-in-place restrictions that expand, clarify, and extend certain shelter-in-place restrictions until May 3, 2020.

As the widespread economic impacts of the coronavirus (COVID-19) worsen, Governor Gavin Newsom issued Executive Order N-28-20 on March 16, 2020, to assist Californians experiencing financial hardship.

Below is a list of real estate issues that employees, developers, landlords, tenants, and lenders may need to address in the wake of COVID-19.

San Francisco voters adopted Proposition E, the “San Francisco Balanced Development Act,” (the act) tying future office development to the city’s production of housing—particularly affordable housing.

The U.S. Fish and Wildlife Service issued a proposed rule on January 30, 2020, that narrowly interprets the protections afforded by the Migratory Bird Treaty Act.

The past year saw several trailblazing opinions, indicating that courts continue to grapple with some of CEQA’s core policies. Click here to read the full report.

California Governor Gavin Newsom signed into law yesterday a major set of restrictions on the actions California cities and counties may take to impede housing development. Senate Bill 330 broadly aims to prevent local agencies from putting up new barriers to housing production.

Governor Gavin Newsom signed into law the Tenant Protection Act of 2019, AB 1482, (now California Civil Code Section 1946.2 and 1947.12), on [DATE], joining only Oregon in enacting a statewide rent control law.

The San Francisco Mayor’s Office of Housing and Community Development released its much-awaited Community Opportunity to Purchase Act (COPA) Program Rules on Monday, September 3, 2019. (The mayor signed COPA on May 3, 2019. More information about the legislation can be found in our previous update.)

The California Supreme Court issued its only CEQA opinion of 2018 at the end of the year. In Sierra Club v. County of Fresno, the court rejected a standard air quality impact analysis in the EIR for a typical mixed-use development project. The court declined to apply the substantial evidence standard of review to the EIR’s discussion of the impact.

A federal court recently prohibited the U.S. Department of the Interior from approving any plans or permits for offshore fracking off the California coast until it complies with the Endangered Species Act (ESA) and the Coastal Zone Management Act (CZMA).

The Environmental Protection Agency and the Army Corps of Engineers announced a proposed rule to redefine the term “waters of the United States” under the Clean Water Act on December 11, 2018.

The California Department of Fish and Wildlife and the California attorney general have jointly issued an advisory regarding California’s state law protections for migratory birds.

In a unanimous decision with immediate repercussions for the administration of the Endangered Species Act (ESA), the U.S. Supreme Court held that an area is eligible for designation as critical habitat under ESA only if it is also “habitat” for the species within the meaning of the statute.

The U.S. Fish and Wildlife Service and National Marine Fisheries Service published three proposed rules last week that would revise the regulations implementing portions of the Endangered Species Act.

The Council on Environmental Quality yesterday issued an advance notice of proposed rulemaking inviting input on potential changes to the CEQ regulations under the National Environmental Policy Act, the federal law that requires environmental impact assessment for projects involving federal funding or other federal approvals.

Most American Indian rights to water trace their origins to 19th century treaty negotiations with the United States. The 1908 Supreme Court case Winters v. United States established that the federal statutes and treaties setting aside land for Indian reservations also impliedly reserved sufficient water to fulfill the purpose of those reservations. 

The U.S. Fish and Wildlife Service issued a guidance memorandum addressing when an incidental take permit may be needed under Section 10(a)(1)(B) of the Endangered Species Act for projects that modify habitat of federally listed species.

On April 9, 2018, the heads of a dozen federal agencies executed a memorandum of understanding on implementation of Executive Order 13807, which directed federal agencies to expedite environmental review and permitting for major infrastructure projects.

The Federal Communications Commission recently adopted an order containing sweeping regulatory changes to speed the deployment of advanced wireless services to provide connectivity for innovative Internet of Things, augmented reality, unmanned vehicles, and artificial intelligence-driven devices, services, and systems.

The $1.3 trillion Consolidated Appropriations Act of 2018, passed March 23, 2018, includes bipartisan measures to fundamentally change how the U.S. Forest Service and other agencies pay for wildfire suppression.

On February 12, 2018, the White House released a set of proposals to streamline the federal environmental review process for infrastructure projects.

The Washington Post last week reported a leaked White House document that revealed a far-reaching set of proposals to streamline the environmental review process for infrastructure projects.

In a unanimous decision on January 22, the U.S. Supreme Court ruled that challenges to the Obama administration’s 2015 Clean Water Rule must be brought in federal district courts rather than directly in the courts of appeals.

In 2017, the California Supreme Court issued two decisions involving highly controversial questions of first impression.  In the closely-watched Cleveland National Forest Foundation case, the court reversed the court of appeal’s ruling that the EIR for SANDAG’s regional transportation plan was fatally flawed because it had not sufficiently considered the 2050 greenhouse gas emissions reduction goal in the Governor’s executive order.

The California Supreme Court decided three cases in 2017, two of which involved highly controversial questions of first impression.

The U.S. Department of the Interior’s Office of the Solicitor issued Memorandum M-37050, on December 22, 2017, which adopts the position that the Migratory Bird Treaty Act (MBTA) prohibition on the “taking” or “killing” of migratory birds applies only to deliberate acts intended to take a migratory bird.

Governor Brown has signed 15 bills designed to address the State’s severe shortage of affordable housing.

President Donald J. Trump issued Executive Order 13807, on August 15, 2017, which is intended to accelerate the environmental review and permitting for infrastructure projects that require an environmental impact statement under the National Environmental Policy Act.

The California Supreme Court has issued its decision in Friends of the Eel River v. North Coast Railroad, an important case regarding preemption of state environmental law by the Interstate Commerce Commission Termination Act, which contemplates a unified national system of railroad lines subject to federal, not state, regulation.

Title 41 of the Fixing America’s Surface Transportation Act (FAST-41) includes measures to streamline environmental reviews for certain infrastructure projects.

An annoying question for lenders is whether or not a lender can enforce two loans to the same borrower and secured by the same property.

The Environmental Protection Agency and the U.S. Army Corps of Engineers released a proposed rule on June 27, 2017, that will rescind the Obama administration’s 2015 Clean Water Rule and recodify the pre-2015 regulations that it replaced.

In Defenders of Wildlife v. Zinke, the U.S. Court of Appeals for the Ninth Circuit upheld the Biological Opinion prepared by the U.S. Fish & Wildlife Service to assess the impacts on the threatened desert tortoise from the Silver State South solar project in southern Nevada.

Section of Environment, Energy, and Resources Law
Water Quality and Wetlands Chapter

A forest products trade association has standing to challenge the critical habitat designation for the northern spotted owl, the U.S. Court of Appeals for the District of Columbia Circuit held in Carpenters Industrial Council v. Zinke, No. 15-5304 (April 11, 2017).

The Supreme Court of California recently ruled that under the California Endangered Species Act (CESA), plaintiffs may use a delisting petition, supported by new evidence, to challenge a prior decision by the California Fish and Game Commission to list an endangered species.

The U.S. Fish and Wildlife Service has formally approved the long-awaited, 30-year eagle take rule, which will allow renewable energy companies and other developers of large projects to obtain a 30-year permit (as opposed to the previous five-year permit) for the incidental take of bald and golden eagles.

In the latest chapter of the seemingly never-ending controversy over the Clean Water Act’s reach, on February 28, 2017, President Trump signed an executive order directing the U.S. Environmental Protection Agency and the U.S. Army Corp of Engineers to rescind or revise the Obama administration’s 2015 Clean Water Rule.

The U.S. Department of the Interior’s Office of the Solicitor issued Memorandum M-37041 on January 10, 2017, arguing that incidental take is prohibited under the Migratory Bird Treaty Act (MBTA).

Just over a year after the California Supreme Court strongly endorsed inclusionary housing ordinances, the Second District Court of Appeal upheld a city’s collection of in-lieu housing fees against a developer’s claim that the city failed to carry its burden of proving the fees were reasonably related to development impacts. 616 Croft Ave., LLC v. City of West Hollywood, No. B266660 (Second Dist. Sept. 23, 2016).

In a 4-3 decision, the California Supreme Court ruled that attorney invoices submitted to public agencies are not categorically exempt from disclosure under the California Public Records Act.

In 2016, the California appellate courts issued published opinions in 21 CEQA cases. In several of those opinions, including a ground-breaking decision by the California Supreme Court, the courts grappled with limits on the scope of required environmental review for a subsequent project approval after a negative declaration or EIR has previously been adopted or certified for the project.

In 2016, the California appellate courts issued published opinions in 21 CEQA cases.

On November 28, 2016, the U.S. District Court for the Northern District of Texas denied a preliminary injunction that sought to block the nationwide implementation of the new Occupational Safety and Health Administration’s anti-retaliation rule, “Improve Tracking of Workplace Injuries and Illnesses.”

This Update was republished in Law360 on 12.05.2016, "How Employers Can Prep For New OSHA Injury Reporting Rule."

Perkins Coie previously published an alert regarding California legislation (SB 1186), which required disclosures in commercial leases as to whether the property being leased had been inspected by a Certified Access Specialist (CASp). On September 16, 2016, new legislation (AB 2093) was enacted to encourage parties to acknowledge accessibility issues and address any necessary remediations during lease negotiations.

In Friends of the College of San Mateo Gardens v. San Mateo County Community College District (Supreme Court No. S214061, filed Sept. 19, 2016), the California Supreme Court resolved the vexing question of whether a change to a project that previously has been studied under CEQA constitutes a new project necessitating a new environmental review, or a modification that can be evaluated under CEQA’s subsequent review provisions allowing reliance on earlier CEQA documents.

California Governor Jerry Brown signed into law last week two controversial anti-climate change bills that will tighten greenhouse gas (GHG) limits by 40% and increase legislative supervision of the California Air Resources Board (CARB)—the agency responsible for reducing GHG emissions.

The U.S. Court of Appeals for District of Columbia Circuit recently held that the U.S. Fish and Wildlife Service violated the National Environmental Policy Act by approving an Ohio wind energy project without looking at all reasonable alternatives for reducing deaths to the endangered Indiana bat.

Authors Cecily Barclay and Julie Jones discuss future issues of implementation for "Plan Bay Area 2040," the region's sustainable communities strategy.   

In NRDC v. Pritzker, the U.S. Court of Appeals for the Ninth Circuit confirmed that the Marine Mammal Protection Act’s (MMPA) incidental take authorizations will be construed narrowly and conservatively, giving the benefit of doubt to marine mammal species.

The Environmental Protection Agency issued a decision on July 5, 2016, that declined to regulate discharges from forest roads for regulation under Section 402 of the Clean Water Act.

The U.S. Supreme Court ruled on May 31, 2016 that an approved jurisdictional determination issued by the U.S. Army Corps of Engineers under the Clean Water Act is a final agency action subject to judicial review.

On May 6, 2016, the Fish and Wildlife Service published a proposed rule that would substantially change how the Service administers its conservation and management program under the Bald and Golden Eagle Protection Act.

The U.S. Court of Appeals for the Ninth Circuit last week rejected a claim under the National Environmental Policy Act that the Navy did not adequately consider the environmental consequences of a potential terrorist threat with respect to the redevelopment of a military complex near downtown San Diego.

The California Energy Commission (CEC) implemented the Nonresidential Building Energy Use Disclosure Program in two phases. 

The California Energy Commission (CEC) recently issued updated regulations for its new Nonresidential Building Energy Use Disclosure Program. The updated regulations provide practical guidance to building owners for complying with the Disclosure Program.

Under the Mitigation Fee Act, when a city imposes a fee, dedication, reservation or other exaction on a development project, the developer has the right to pay under protest, obtain the necessary project approvals and proceed with construction, while at the same time disputing the legality of the requirement.

On August 14, 2013, the California Energy Commission announced for the second time this summer that implementation of California’s new energy use disclosure regulations has been delayed. These delays affect the regulation’s original compliance deadlines, which we explained in our update dated May 9, 2013.

The California Supreme Court has both resolved a split in the appellate courts and forged new law on the baselines agencies may use to assess projects’ environmental effects under CEQA. Neighbors for Smart Rail v. Exposition Metro Line Construction Authority, Case No. S202828 (Cal. Supreme Court, August 5, 2013).

The California Legislature adopted Section 25402.10 of the California Public Resources Code in 2007.

The California Supreme Court has unanimously upheld a local ban on medical marijuana dispensaries, holding that the ban was not preempted by state statutes governing medical marijuana.

According to the author’s April 23, 2013 press release, the amended version of Senate Bill 731 is a “comprehensive reform” of CEQA, “modernizing the law to aid California’s economic growth.” But a close review shows that the bill would actually impose a new set of burdensome procedural requirements on CEQA lead agencies and project applicants.

In an opinion published on March 28, 2013, a California court of appeal answered three questions under the California Environmental Quality Act that the published decisions have not yet addressed.

In response to a business community campaign calling for broad CEQA reform, Senate President Pro, California State Senator Tempore Darrell Steinberg, released his highly anticipated CEQA “modernization” bill.

This Update was also published on Law360.

The first published California Environmental Quality Act case of 2013, Save Cuyama Valley v. County of Santa Barbara, strongly endorsed a lead agency’s authority to use its own, project-specific significance thresholds in an environmental impact report.

In Preserve Wild Santee v. City of Santee, the court immersed itself in an EIR’s evaluation of the impacts of a large residential project proposing 1,395 homes and 1,400 acres of open space preserve.

How often do we hear project proponents ask whether there is a way to shortcut the CEQA timeline or head off litigation?  It's not an unusual question given that some proposals draw fire no matter how much energy goes into the environmental disclosure and mitigation process.

On June 19, 2012, in Association of Irritated Residents v. California Air Resources Board, the court of appeal in San Francisco upheld the Climate Change Scoping Plan adopted by the Air Board in December 2008.  The court rejected claims by environmental groups that the plan violated the Global Warming Solutions Act of 2006, commonly known as AB 32.

Overturning a rule announced 15 years ago, the California Supreme Court has issued a landmark decision holding that the requirement that parties first address their complaints at the agency level before litigating those issues in court applies to challenges to agency decisions regarding whether a project is exempt from the California Environmental Quality Act.  If the decision-making agency holds a hearing on the project, future litigants must make sure someone first apprised the agency of the relevant issues before they can bring those claims to court.

Parties commonly enter into agreements tolling the statute of limitations for claims arising under the California Environmental Quality Act (CEQA).  However, the validity of such agreements, which some argue have thwarted the public’s interest in prompt resolution of CEQA disputes, has not been certain.  In Salmon Protection & Watershed Network v. County of Marin, the California Court of Appeal made clear that such agreements are valid and enforceable, at least in certain circumstances.

In Neighbors for Smart Rail v. Exposition Metro Line Construction Authority, the California Court of Appeal for the Second Appellate District ruled that, when supported by substantial evidence, projected future conditions may serve as an appropriate baseline for measuring a project's impacts under the California Environmental Quality Act.

The California Supreme Court’s decision in California Redevelopment Association (CRA) v. Matosantos Commercial Corporation (No. S194861) requires redevelopment agencies (RDAs) to wind down immediately.

The California Supreme Court has announced that recently enacted legislation disbanding redevelopment agencies is constitutional, while the companion legislation that would have allowed redevelopment agencies to continue to exist if they made "voluntary" payments is unconstitutional.

In Sierra Club v. Van Antwerp, decided by the U.S. Court of Appeals for the District of Columbia Circuit, the Army Corps of Engineers approved a permit under the Clean Water Act (the Act) authorizing the fill of approximately 54 acres of wetlands for the construction of a large town center outside of Tampa, Florida.

California's Second District Court of Appeal has addressed provisions of the California Environmental Quality Act (CEQA) checklist questionnaire that appear to require analysis of the effects of environmental hazards on the proposed project.

The Sixth District Court of Appeal, in Pfeiffer v. Sunnyvale, recently upheld the use of a traffic baseline that included future projects despite an earlier Sixth District case that had raised serious questions about that practice.

In Honchariw v. County of Stanislaus, the California Court of Appeal ruled that the county’s decision to deny a subdivision map for a housing project violated California’s Housing Accountability Act (the Act), also known as the “Anti-NIMBY” law, even though the project did not include any affordable units.

After two-and-a-half years of public review, the San Francisco Bay Conservation and Development Commission (BCDC) unanimously approved a comprehensive set of amendments to its Bay Plan to address climate change and the resulting sea level rise anticipated to occur in San Francisco Bay.

In recent years, California has enacted numerous laws to encourage solar and infill development. Governor Jerry Brown has now signed Senate Bill 226, which amends the California Environmental Quality Act (CEQA) to further encourage projects designed to reduce greenhouse gas emissions.

California Governor Jerry Brown just signed AB 900, the Jobs and Economic Improvement Through Environmental Leadership Act of 2011. This bill creates a streamlined litigation process for challenges to environmental impact reports for certain projects that are expected to create jobs and cause relatively few environmental impacts. The bill allows these cases to be heard directly by the court of appeal, on an expedited basis, bypassing the trial court.

For power plants over 50 megawatts, the Warren-Alquist Act provides a “one stop” permitting scheme at the California Energy Commission to obtain certain permits, but not Clean Water Act discharge permits.

In June of this year, the California legislature passed two bills designed to address the state’s budget crisis. The bills addressed redevelopment agencies, which are local agencies created to use property tax funds to redevelop blighted areas. ABX1 26 suspended most redevelopment agencies and provided for their gradual dissolution. It barred redevelopment agencies from taking action other than paying existing debts, performing existing contractual obligations and setting aside reserves required for bonds.

Save the Plastic Bag Coalition v. City of Manhattan Beach

2018 has been another eventful year in the evolution of land use and planning law in California.

A discussion with California State Senator Scott Wiener on what now after SB827 and how to solve the California housing crisis.

2017 has been another eventful year in the development of land use and planning law in California.

2016 has been another dynamic year in the development of land use and planning law in California.

2015 has been a year of significant developments in land use, CEQA and environmental and resources law.

The 25th Annual Land Use & Development Law Breakfast Briefing presentation focused on 2014 developments and trends in land use, affordable housing, school facilities financing, CEQA, real estate and environmental and resources Law. Download PDF version of presentation materials