In Honor of Black History Month, Please Join Meyers Nave in Supporting Black-Owned Businesses

Black History Month is a time to pay tribute and honor Black women and men who have made significant contributions to America, who have made a profound impact on our nation’s history, and who have made civil rights a fundamental measure of social progress. While it is intended to be a time of celebration, it is also a time to reflect on the continuing struggle against racial injustice and racial inequity that persist in our country. Black History Month is an opportunity to improve the understanding of Black history, to recognize what Black people have both lost and achieved, and honor the Black women and men of today who are making a difference for tomorrow.

In that spirit, and in honor of Black History Month, Meyers Nave’s Diversity Committee invites you to join us in supporting Black-owned businesses. Supporting and increasing the number of Black-owned businesses is critical to reducing racial economic disparities and closing racial gaps in employment opportunities. Successful Black-owned businesses also help inspire Black youth to pursue their dreams and provides a visual representation of success in the community. Below is a partial list of Black-owned businesses in areas where Meyers Nave has offices – Los Angeles, Oakland, Sacramento, San Diego and Santa Rosa. We encourage everyone to patronize and support these and other Black-owned businesses this month, and every month.

Amrit Kulkarni’s Land Use and Environmental Expertise Featured in Southern California Super Lawyers 2021

Amrit Kulkarni, Chair of Meyers Nave’s Land Use & Environmental Law Practice, is featured in the 2021 issue of Southern California Super Lawyers magazine in an article titled “In For The Long Haul: When Amrit Kulkarni’s not catching waves, he’s helping build big things.” Super Lawyers interviewed Amrit, his clients, and Meyers Nave Managing Principal David Skinner. The article covers Amrit’s specialty in providing transaction and litigation counsel on large-scale, high-profile, complex and often controversial infrastructure, transportation, commercial, and urban development projects throughout California. Amrit’s project experience includes airports, passenger transit systems, freight rail networks, ports, harbors, highways, water resources, mixed-use residential developments, sports and entertainment complexes, university campuses, commercial properties, and industrial facilities.

Super Lawyers notes that “Quite a few California structures bear his fingerprints. Clients come to Kulkarni with big projects that make a significant environmental impact. He’s an expert in navigating the Golden State’s complex environmental laws—particularly the California Environmental Quality Act.” A client also commented that “A good CEQA lawyer is someone with attention to detail, and who can handle the transactional side but is not afraid of the litigation. Most lawyers pick one, but CEQA requires the skill set in both. Kulkarni and his team spot issues and bring a sense of confidence. They are consistently aware of new rulings and cases. Never once has he not been there when we needed him.” Amrit explained that his approach to client service is “You have to work in tandem with your client—thinking about all the issues that can arise to help them achieve their objectives by creating a path that is as clean, straightforward and problem-free as possible. What’s rewarding to me is being part of something tangible that you can see which has changed the landscape. I want to create things. I want to help get things done and built. The projects I get involved with are meant to renew the economy, provide jobs and make things work better. The joy isn’t in how much attention they get, but in whether you get them done.”

Please click here to read Amrit’s feature article profile, which is also copied below.

“In For The Long Haul: When Amrit Kulkarni’s
not catching waves, he’s helping build big things,”
Super Lawyers Southern California 2021

WHENEVER AMRIT KULKARNI FLIES THROUGH Los Angeles International Airport, he takes a moment to reflect on what he calls his “small but meaningful part” in the airport’s growth—successfully defending LAX’s $13 billion expansion plan against four consolidated lawsuits a decade ago. Kulkarni, chair of Meyers Nave’s land use practice group, has many chances for such quiet moments. Quite a few California structures bear his fingerprints. The NBA’s Kings play in a glistening stadium in downtown Sacramento because of his work pushing the project through on a tight deadline in 2015 after a judge dismissed a claim that the city gave an illegal “secret subsidy” for the arena. And when the city of Riverside claimed that a major project in the port of Los Angeles would cause traffic jams 62 miles away, he successfully defended against that one, too.

From a major league baseball stadium in Anaheim, to a Frank Gehry-designed development on Sunset Boulevard, to a high speed rail in Barstow, clients come to Kulkarni with big projects that make a significant environmental impact. He’s an expert in navigating the Golden State’s complex environmental laws—particularly the signature California Environmental Quality Act, more commonly known as CEQA. “A lot of law is about arguing over documents and dollars moving here and there,” Kulkarni says. “That’s important. But what’s rewarding to me is being part of something tangible that you can see which has changed the landscape. I want to create things. I want to help get things done and built.”

These large-scale projects require a lot of legal scaffolding because of how they impact different parts of a community. When Kulkarni’s clients get attention, it’s often because people are holding protest signs or sitting with arms folded at a government meeting. In describing Kulkarni, Janna Sidley, general counsel of the Port of Los Angeles, says, “A good CEQA lawyer is someone with attention to detail, and who can handle the transactional side but is not afraid of the litigation. Most lawyers pick one, but CEQA requires the skill set in both. It also requires a talented writer who can tell the court and the public why they are doing this project at this time. People generally don’t like change, so you need a visionary who can explain how this next step will benefit everyone. Kulkarni and his team spot issues and bring a sense of confidence. They are consistently aware of new rulings and cases. … Never once has he not been there when we needed him.”

FINDING COMMON GROUND COMES NATURALLY to Kulkarni. His parents emigrated from India, settled in Virginia, and in 1976, when Kulkarni was 7, his dad got a job as a scientist at the Lawrence Livermore National Laboratory. Kulkarni remembers “a long cross-country trip in a broken-down car with no air conditioning in the dead of summer.” At UC Santa Cruz, his focus was the environmental studies program, and for his senior thesis he spent six months in India, where he studied how impoverished communities addressed shortages of services. “I was exposed to both cultures,” he says. “It is important to defining how I approach things. In the legal world, you’re always trying to navigate complex projects where there are often divergent points of view. Understanding where people are coming from helps you navigate those murky waters.”

After graduating, he became an environmental consultant. He helped find suitable sites for development while handling regulatory permitting. But after two years on the job, he felt dissatisfied. Then an epiphany. “As I was working on one project, a Superfund site, I was astounded how many layers of legal stuff were required to make this thing happen,” he says. “I realized if I wanted to play a part in effectuating these projects, I had to get on the legal side.” After graduating from the Northwestern School of Law at Lewis & Clark College in 1998, he first encountered CEQA while working for a small firm in Ventura County. The complex statute can seem like the Rosetta Stone to most people, but for Kulkarni it was love at first sight. “CEQA is legally complex and politically charged,” he says. “It’s like putting the pieces of a puzzle together to make your case. The fun is in the puzzle.”

A year later, he joined Meyers Nave. At the time, the firm mostly handled traditional development involving residential and commercial properties; but during and after the 2008 global financial meltdown, the firm transitioned to large-scale projects with long-term horizons. LAX was his first big client. Kulkarni was the lead attorney for the South Airfield Improvement Project, which was the first project implementation under the LAX Master Plan. Handling the legal details involved forecasting cargo and passenger traffic 15 years into the future, and determining how noise impact and air quality emissions are calculated. “This made me understand the interplay between law, science and other fields,” Kulkarni says.

His clients include the Lawrence Berkeley National Laboratory, various cities, and multiple University of California school systems. “He is very collaborative and a team person,” says David Skinner, managing principal of Meyers Nave. “He delegates a lot because he has to in cases of this size, complexity and long-term nature. He has built a high-performing team and they work as a team, and he has a big trust investment in them.” Kulkarni has already spent 10 years working on the BART expansion into Silicon Valley. He is representing the Santa Clara Valley Transportation Authority in lawsuits from parties that have issues with parking, tunnel size and other details. “These projects often take a decade or more to implement,” he says. “You have to work in tandem with your client—thinking about all the issues that can arise to help them achieve their objectives by creating a path that is as clean, straightforward and problem-free as possible.”

Of course “problem-free” and large development projects in a state like California can be something of a contradiction. “Development in California, especially large projects, has one of the most challenging and complex processes in the country,” he acknowledges. “There are federal, state and local legal overlays. On top of that, California has a very robust process for vetting projects, and a very robust litigation process for people who don’t agree with the outcome of the vetting process.”

Kulkarni describes his courtroom style as “methodical” and “step-by-step.” He likes to present issues in a straightforward and clear way that simplifies complex issues. “Every major project has a story that needs to be told,” he says. “And I try to tell that story through the legal lens.” He also tailors his presentation to the particular court. “Some judges are focused on the technical, factual and legal issues,” he says. “Some judges are more focused on the implications of the decisions and the policy considerations. The job of the lawyer in that situation is to provide the right information based on the judge’s focus and to address the judge’s concerns.” Skinner has seen this firsthand. He recalls a bench trial with an aggressive opposing counsel. “Amrit not only has the ability to simplify legal issues for a court, but he also has the ability to engage with judges in a dialogue about complex legal issues and the nuances of the law,” Skinner says. “In a major CEQA case challenging a major transit project, at trial Amrit simply stated, ‘I feel the opposing counsel and I are speaking different languages because he can’t appreciate the nuances.’ The judge was nodding his head as he listened.”

It’s not all airports and stadiums. Kulkarni represented Lotus founder Mitch Kapor and his wife in a case in which they wanted to build their dream home on a steeply sloped and wooded lot in North Berkeley. Neighbors complained that the 6,478-squarefoot house and its 3,394-square-foot garage were too large and seismically unsafe for the area. Typically, single-family houses were exempt from preparing environmental impact reports, and this case centered on exactly when such properties needed further review under CEQA. After 10 years of litigation—five with Kulkarni on the case—it ended up in the California Supreme Court in 2015. “The judges asked a lot of tough questions, coming from every angle imaginable,” Kulkarni says, but the court ruled in his client’s favor. An opinion piece in the San Francisco Chronicle labeled the decision “a significant reform” in the state’s signature environmental law, eliminating “detailed, time-consuming, often-redundant and expensive environmental and public review process for nonexempt projects.”

Kulkarni says he doesn’t particularly like to have op-eds written about his work, even if it’s complimentary. “The projects I get involved with are meant to renew the economy, provide jobs and make things work better,” he says. “The joy isn’t in how much attention they get, but in whether you get them done. If you’re doing a good job, where there are as few problems as possible, these projects should get less attention.”

GIVEN HIS PRACTICE AREA, it makes sense that much of Kulkarni’s spare time is spent outdoors—backpacking, hiking, but especially surfing. When he first moved to California, Kulkarni got seasick bobbing up and down on the waves; then he quickly took to it. He has since traveled the world in search of waves. “Surfing is a centering way to put aside the pressures of the legal profession, meditate and self-reflect,” he says. “When you are bobbing up and down on the water in the late afternoon as the sun sets, waiting for a wave, it brings down your blood pressure and brings a peace and relaxation that counters the demands and hecticness of being a lawyer.” Bonus: He’s landed some clients conversing with fellow surfers waiting for that wave. “Surfing is a very social sport,” he explains. The mellow nature of the sport fits his personality. “I like to paint in broad strokes when it comes to surfing or dealing with my kids,” he says. “I’m not into the hyper-technical details. I give my kids a lot of runway to figure things out. I don’t like to micromanage. People have to arrive at a decision themselves to feel most comfortable with it.”

“The law can beat you up and harden you, but I don’t think it has changed who he is,” Sidley says. “He’s a real person.” And a voracious reader. A sci-fi buff, Kulkarni has lately been consuming biographies of past presidents to better understand our current times. “History is a guide for the future,” he says. “We are an always-evolving country. When you look at the U.S. from a historical perspective, you realize how resilient we are as a country. Sometimes we take a few steps forward, sometimes we take a few steps back. Hopefully, the arc is always moving in the right direction.”

Shelter In Place Litigation Update: Ninth Circuit Affirms California’s Temporary Restrictions on Indoor Worship Services While Invalidating 100/200 Person Numerical Caps

On January 22, 2021, the Ninth Circuit recently issued its opinion in South Bay United Pentecostal v. Newsom, affirming an order by Southern District Judge Cynthia Bashant denying the church’s motion for preliminary injunction against the State and San Diego County’s restrictions on indoor worship services to slow the spread of COVID-19. The case is the first Ninth Circuit case to directly address a religious group’s challenge to the restrictions as a violation of their First Amendment right to free exercise of religion since the Supreme Court enjoined Governor Cuomo’s restrictions on religious services in New York in Roman Catholic Diocese of Brooklyn v. Cuomo.

The Ninth Circuit addressed the State’s Regional Stay at Home Order (which is now lifted) and the State’s Blueprint color-coded tier restrictions. The Court upheld the temporary prohibition on indoor worship under both the Regional Order and the Purple Tier 1 of the Blueprint, as well as the statewide ban on indoor singing and chanting. However, the Ninth Circuit ordered the District Court to enjoin the 100 and 200 person attendance caps for indoor worship under Red Tier 2 and Orange Tier 3, while allowing the percentage capacity restrictions of 25% and 50% under those tiers to stand.

Then, on January 25, 2021, the Ninth Circuit’s motions panel issued a similar ruling denying an injunction pending appeal in Harvest Rock v. Newsom. Like South Bay United, the appeal was from the denial of Harvest Rock’s motion for preliminary injunction issued by Central District Judge Jesus Bernal. The panel issued an order denying the requested injunction except as to the 100 and 200 person caps in Tiers 2 and 3, citing South Bay United as the basis for the decision.

Key Takeaways

  • Strict scrutiny will apply to free exercise claims so long as the guidelines treat religious worship more harshly than other secular activity. The State argued that the criteria for determining the restrictions was neutral and, therefore, rational basis review should apply. The Ninth Circuit rejected this argument, saying that it was foreclosed by Roman Catholic Diocese of Brooklyn v. Cuomo and that strict scrutiny would apply “whenever a state imposes different capacity restrictions on religious services relative to non-religious activities and sectors.” The Ninth Circuit appeared to shift away from the previous disputes over what the proper comparators were and, instead, applied a broader rule that essentially looks at any and all secular activity as a comparator.
  • A fact-specific analysis will apply to determine whether the restrictions meet the narrow tailoring requirement. In South Bay United, both Judge Bashant and the Ninth Circuit thoroughly analyzed applicable restrictions—in particular as compared to the restrictions applicable to other industries and in light of the specific risks each posed—to determine whether the restrictions on religious services were narrowly tailored. Judge Bashant credited the State’s expert witnesses over the church’s, and the Ninth Circuit emphasized that their review of these factual determinations was subject to the deferential clear error standard of review. The key to successfully opposing preliminary injunctions in similar cases going forward will be marshaling strong expert testimony to support the restrictions.

The Ninth Circuit engaged in a careful examination of the evidence in the record and noted its deference to the district court’s factual determinations. South Bay United and Harvest Rock therefore serve as clear reminders of the importance of building a strong evidentiary record in order to survive the rigorous strict scrutiny rubric.

South Bay United has already filed a petition for writ of certiorari with the Supreme Court, as well as an emergency motion for injunction pending appeal, so it is likely there will be further development on these issues in the very short term.

About Our Shelter In Place Litigation Expertise
Meyers Nave’s Shelter In Place Litigation Team is currently defending counties, cities and health officials throughout California in federal and state court litigation challenging Public Health Orders, Shelter In Place Orders, and Reopening Plans related to the coronavirus pandemic. The team is tackling both the complex constitutional law issues in litigation as well as the practical enforcement issues that arise from restrictions placed on the operation of churches, gyms, nail salons, wine bars, brew pubs, restaurants, and other businesses. We have obtained victories at the district and appellate court levels.  Please click here for recorded Meyers Nave webinars and Client Alerts covering developments in litigation related to COVID-19.

Appellate Court Finds Certain State-Mandated Stormwater Permit Requirements Imposed on Local Governments Are Subject to Cost Reimbursement

In Department of Finance v. Commission of State Mandates (“Department of Finance II”), the Second Appellate District of the California Court of Appeal recently held that local governments are entitled to subvention (i.e., reimbursement of costs) for certain stormwater permit trash receptacle requirements under article XIII B, section 6 of the California Constitution (“section 6”) which provides for the reimbursement of costs of any state-mandated “new program or higher level of service.” However, the court also found that these local agencies are not entitled to subvention for stormwater permit inspection requirements because, while such programs are new programs or higher level of service under section 6, in this instance the local agencies have the authority to levy fees sufficient to pay for those permit conditions. Still, the Court’s ruling under section 6 is critical to local governments because state agencies were routinely arguing as a complete defense to stormwater-related test claims that stormwater programs mandated in permits were not new programs or higher levels of service.  According to the Court, “[b]y requiring the local governments to comply with the trash receptacle and inspection requirements, the state agencies have effectively shifted the financial responsibility for such programs to the local governments.”

Department of Finance II is this latest judicial ruling in the underlying action which was initially brought in 2009 and is based on permit conditions that were initially imposed in 2001. The California Supreme Court previously found in Department of Finance v. Commission on State Mandates (2016) 1 Cal.5th 749 (“Department of Finance I”) that the permit conditions at issue were not federal mandates and therefore potentially subject to subvention by the state. The analysis in Department of Finance II is particularly important because it makes it much more likely that the Commission on State Mandates will grant the numerous stormwater test claims currently pending on its docket. Department of Finance II potentially has far-reaching implications as it suggests that many state-mandated permit requirements that cannot be charged to business dischargers may be subject to subvention. In addition to the trash receptacle requirements at issue, these requirements might include trash capture systems and other trash removal programs, green infrastructure requirements designed to reduce pollutant loads into stormwater, public education programs, etc.

The issues in Department of Finance II are complex and have been litigated for more than a decade. To help explain the Court’s detailed and lengthy ruling, Meyers Nave attorneys have prepared an analysis of the decision that can be found here. Please contact Bryan Brown if you have questions about how this case may impact your agency’s interests.

Meyers Nave San Diego Attorneys Receive 2021 “Super Lawyers” and “Rising Stars” Recognition

Meyers Nave proudly announces that Janice Brown, Arlene Yang and Suzanne Roten were selected for inclusion in the 2021 “San Diego Super Lawyers” list and Annie Smiddy was selected for inclusion in the 2021 “San Diego Rising Stars” list. Published in Super Lawyers Magazine, up to five percent of the lawyers in California are named to the Super Lawyers list and up to 2.5 percent are named to the Rising Stars list.

We congratulate Janice, Arlene, Suzanne and Annie for this important recognition of their legal expertise and professional accomplishments in both their geographic region and their areas of specialty.

Janice Brown, Principal – Recognized from 2007-2021 in the Super Lawyers categories of (1) Employment Litigation: Defense, (2) Employment & Labor: Employer and (3) Business Litigation

Arlene Yang, Principal – Recognized from 2020-2021 in the Super Lawyers categories of (1) Employment & Labor: Employer, (2) Employment Litigation: Defense and (3) General Litigation

Suzanne Roten, Senior Of Counsel – Recognized from 2015-2021 in the Super Lawyers category of Employment Litigation: Defense

About Super Lawyers®: Super Lawyers evaluates attorneys from firms of all sizes in more than 70 practice areas throughout the United States. Super Lawyers selects lawyers who have attained a high degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations and peer evaluations. Super Lawyers Magazine, publisher of the lists, is distributed to attorneys and ABA-accredited law schools.

Mandatory vs. Voluntary COVID-19 Vaccination Policies: What California Employers Need To Know

Now that COVID-19 vaccines are gradually rolling out, employers are asking if they can – and should – require employees to get vaccinated and are considering what they can do if employees refuse.

Q: Can employers require employees to obtain COVID-19 vaccinations?
A: Likely yes, but employers must be prepared to accommodate employees with disabilities and religious objections, and comply with applicable meet and confer obligations and collective bargaining provisions.

In its most recent guidance, the U.S. Equal Employment Opportunity Commission (“EEOC”) made clear that an employer can (1) mandate that employees take vaccines and (2) keep unvaccinated employees out of the workplace if the employer determines that the unvaccinated employee poses a “direct threat” due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” At the same time, employers must still provide reasonable accommodations and engage in the interactive process with employees who have disabilities and cannot take the vaccine or those with sincerely held religious beliefs in opposition to vaccination.

Q: Should employers mandate COVID-19 vaccinations?
A: While the EEOC Guidance provides a framework under which mandatory vaccination requirements may be lawful, employers still need to carefully consider (1) the benefits, risks and expenses that may accompany a mandatory vaccination policy and (2) whether requiring vaccination is truly necessary.

Employers with unions will be required to comply with applicable memorandum of understanding (“MOU”) provisions and satisfy meet and confer obligations for represented employees in order to mandate vaccinations. Careful attention should be placed on any rules or MOU provisions that may limit the ability to mandate vaccinations or prohibit the ability to change existing terms and conditions of employment without union agreement. All employers should consider that, under applicable wage and hour laws, if vaccines are mandated, the time it takes for an employee to get vaccinated should be treated as compensable work time.  Similarly, any costs associated with getting the vaccine would be reimbursable business expenses.

Q: What happens if many employees refuse to be vaccinated?
A: Employers may be reluctant to discipline or terminate a large number of employees, and equally reluctant to create multiple individual exceptions that may lead to litigation. For example, reports are finding that 10% to 20% of health care workers are refusing vaccination, regardless of whether they have a reason to object based on disability or religion.

For employees with for-cause employment rights, employers need to comply with due process before taking corrective action against employees as a result of a refusal to be vaccinated. Because this is an untested area of law, employers should consult with legal counsel before considering corrective action.

Q: What other issues need to be considered?
A: Many important questions need to be answered, including will the vaccination policy be written? How will the employer collect and protect employees’ vaccination records? What are the risks to employees, the public, customers, or clients if the employer does not mandate vaccination? Would a voluntary vaccination policy be as effective? Can the employer offer incentives to encourage vaccination? Will employers continue to maintain health and safety measures such as masks and social distancing after employees are vaccinated? How should employers handle meet and confer or renegotiating existing MOUs?

Recorded Webinar on COVID-19 Vaccination Policies
Given the complexity of navigating federal and state laws, MOUs, personnel rules, and practical considerations, employers should consult legal counsel before creating and implementing a mandatory or voluntary vaccination policy. Our Labor and Employment Law attorneys are assisting California employers regarding all legal issues related to COVID-19 vaccines. Our team provided a webinar on February 3 to address the myriad COVID-19 vaccination issues, including how employers can meet EEOC requirements, increase workplace safety, and minimize risk.

Reference List
Please see below for a list of articles and links in reference to COVID-19 vaccinations.

2021 Employment Law Update: A Six-Minute Snapshot of What’s New for Employers

In a televised interview with KUSI Good Morning San Diego, Meyers Nave Employment Law Principal Arlene Yang provided a six-minute overview of important employment law changes that impact employers in 2021. Arlene discussed COVID-19 related paid leave laws, questions about mandating COVID-19 vaccines, and the California Family Rights Act, as well as independent contractor laws.

Please click here for Arlene’s interview.

Recorded Webinars: For additional information about important employment law changes for 2021, Meyers Nave provided an Employment Law Update webinar on January 12 for private and non-profit sector employers and on January 14 for public sector employers. Please click here to view the webinars. Both webinars covered the following topics.

  • COVID-19 Health and Safety Issues: COVID-19 notification requirements (AB 685), new Cal/OSHA regulations, workers’ comp changes (SB 1159), and vaccines in the workplace (Law360 recently reported that “in-house legal professionals overwhelmingly cite employment liability as the biggest legal risk they’re facing related to the global health crisis, with many readying themselves for employment litigation they believe is in the pipeline.”)
  • Equity in the Workplace: new pay data reporting requirements (SB 973), new FEHA regulations, and diversity training
  • Compensation and Wage and Hour: amendments to the AB 5 independent contractor law (AB 2257 and Prop. 22), Right of Recall ordinances, and new wage and hour developments
  • Leave, Benefits and Accommodations: expanded leave (SB 1383, AB 2017) and COVID-19 leave (AB 1867)

 

Meyers Nave Los Angeles Attorneys Receive 2021 “Super Lawyers” Recognition

Meyers Nave proudly announces that Amrit Kulkarni and Deborah Fox were selected for inclusion in the 2021 “Southern California Super Lawyers” list. Published in Super Lawyers Magazine, only up to five percent of the lawyers in California are named to the Super Lawyers list and up to 2.5 percent are named to the Rising Stars list.

We congratulate Amrit and Deborah for this important recognition of their legal expertise and professional accomplishments in both their geographic region and their areas of specialty.

Amrit Kulkarni, Principal – Recognized from 2012-2021 in the Super Lawyers categories of (1) Environmental Litigation and (2) Land Use/Zoning

Deborah Fox, Principal – Recognized from 2017-2021 in the Super Lawyers categories of (1) Constitutional Law, (2) State, Local & Municipal and (3) Land Use/Zoning

About Super Lawyers®: Super Lawyers evaluates attorneys from firms of all sizes in more than 70 practice areas throughout the United States. Super Lawyers selects lawyers who have attained a high degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations and peer evaluations. Super Lawyers Magazine, publisher of the lists, is distributed to attorneys and ABA-accredited law schools.

US Department of Transportation Proposes Updated NEPA Procedures Adding Streamlining and Efficiency Measures

The United States Department of Transportation (DOT) recently issued a notice of proposed rulemaking to update its environmental review procedures to include streamlining and other efficiency provisions. The new rules propose a comprehensive update of DOT Order 5610.1C, “Procedures for Considering Environmental Impacts,” which sets forth the agency’s responsibilities and procedures for complying with the National Environmental Policy Act (“NEPA”). DOT Order 5610.1 was issued in 1979 and last updated 35 years ago in 1985. The new proposed rule was issued on November 23, 2020 and public comments are due December 23, 2020.

DOT Policy Alignment
The proposed rule updates DOT’s NEPA procedures to align with current DOT organization, practice and policies. Reflecting congressional declarations of policy, the proposed rule seeks to incorporate into DOT’s NEPA environmental review procedures the streamlining, cost-saving and accelerating provisions of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Moving Ahead for Progress in the 21st Century Act (MAP-21) and the Fixing America’s Surface Transportation (FAST) Act. The proposed rule also would update DOT’s NEPA procedures in response to the Council on Environmental Quality’s (“CEQ”) recent final rule updating its NEPA procedures, which took effect on September 14, 2020.

Proposed Significant Changes
The proposed new rule streamlines the NEPA process and narrows the scope of federal review. The rule includes the following important changes.

  • Eliminates definitions for “cumulative effects” and “indirect effects”. This is consistent with the recent CEQ final rule where a cumulative impacts section is no longer required in NEPA documents. This change may make it more difficult to challenge projects in court as project opponents often focus on the cumulative effects of projects.
  • Incorporates definitions for “effects”, “impacts” and “major federal action”. The proposed rule incorporates these three definitions from the new CEQ rule. The result is that (1) “effects” and “impacts” would be limited to changes to the human environment that are reasonably foreseeable and have a reasonably close causal relationship to the proposed action or alternatives and (2) “major federal action” would be modified to mean that non-federal projects with minimal federal funding or minimal federal involvement are excluded from NEPA review.
  • Adds several new categorical exclusions for routine operational activities. The rule also allows DOT sub-agencies to apply the categorical exemptions of another agency which may introduce more flexibility in excluding actions from NEPA review.
  • Sets new time lines. A time limit of one year for environmental assessments (EA) and two years for environmental impact statements (EIS) would be established. Written approval from the Assistant Secretary would be required for additional time.
  • Sets new page limits. The proposed rule includes an EIS page limit of 150 pages (300 pages if the project is complex).
  • Changes supplementation. The proposed rule requires supplementation of a NEPA document only if sufficient federal control remains.
  • Clarifies NEPA policy. The proposed rule declares DOT policy is to use the NEPA process as an umbrella to achieve a single, integrated and concurrent review process for major federal projects.

Next Steps and Outlook for Proposed Rule
Although the proposed rule has not been finalized, the recent CEQ rule is applicable to DOT projects that commenced after September 14, 2020. The proposed DOT regulations may also be challenged in court, like the CEQ rule, which has been challenged by coalitions of environmental organizations. The U.S. Chamber of Commerce and a coalition of business associations have sought to defend the CEQ rule in court and industry groups likely will also support the proposed DOT rule because it streamlines the NEPA process and narrows the scope of federal review. According to media reports, transportation industry experts have cautioned the Biden administration could rescind the new DOT rule.

Public comments to the proposed rule are due by December 23, 2020. This is a short time frame and may represent the current administration’s goal to finalize the rule before the January 20, 2021 inauguration.

Meyers Nave Makes an Important Holiday Donation to Help Students, Teachers and Families

Why Did We Donate to the California Bridging the Digital Divide Fund?
The COVID-19 crisis is forcing millions of children to learn from home, but a technology gap is creating an ever-growing digital divide that impedes access and achievement for many students.

  • 20% of California students cannot access the internet at home
  • 50% of low-income families and 42% of families of color lack an appropriate computing device at home for distance learning

Meyers Nave donated to the California Bridging the Digital Divide Fund because it provides devices, connectivity, and digital learning support for PK-12 students, teachers, and their families. We encourage everyone to join us in donating to help support academic success and mitigate learning loss related to COVID-19 school closures.

Please click here for information about donating to the California Bridging the Digital Divide Fund, which is a joint effort of the Governor’s Office, State Board of Education, California Department of Education, and CDE Foundation.