Legal experts question Newsom's fire rebuilding fast-track

The practical effect of Gov. Gavin Newsom's executive order granting waivers on all permitting requirements under the California Environmental Quality Act and the California Coastal Act to fast-track reconstruction of fire-damaged areas in Southern California is probably minimal, legal experts said Monday.

Despite the sweeping language in the governor's Sunday order, Cox, Castle & Nicholson LLP partner Alexander M. DeGood said it does not address some critical issues facing homeowners and communities.

"This is an understandable, unsurprising first step in what is going to get increasingly complicated," the Los Angeles partner said in a phone interview.

People whose homes have burned down will not have to deal with CEQA, but single-family houses were exempt under the 1970 law anyway. For many, the problems will extend to remediation of contamination on the site, which is covered by state agencies like the Department of Toxic Substances Control, DeGood said.

While the fires still burn, and emotions are running high, political leaders like Newsom are acting to help constituents. But DeGood wondered what will happen when the blazes are out, and government officials and regulators consider whether to "rebuild exactly as it was" in a fire-prone area.

Insurance will be a pressing concern, both for homeowners who didn't have coverage and even for those who did due to the risk of policies being cancelled. "What's the insurability of these properties?" DeGood asked. "The companies can't set rates where they want them."

"It's good optics," Arthur F. Coon, a shareholder and chair emeritus of Miller Starr Regalia's Land Use Practice Group in Walnut Creek, said of Newsom's order. "It's not clear how widespread a benefit this order will have."

Newsom's order suspends CEQA - the landmark 1970 law that requires public agencies to analyze and mitigate for a wide range of projects that can have a significant impact on the environment - and the Coastal Act in affected areas of Los Angeles and Ventura counties.

The governor, in his order, wrote that the state "can expedite recovery from this disaster by eliminating barriers that unduly delay the rapid rebuilding of homes and other facilities destroyed or damaged by the extreme windstorm conditions and resulting fires."

Attorneys said the CEQA provision will have the most impact, as it clarifies that replacing burned-down structures does not require an expensive environmental study and should block resistance by government administrators or lawsuits by others.

"It's a helpful statement by the governor that reaffirms a lot of what the existing regulations are with respect to buildings that are damaged," said Andrew K. Fogg, another Los Angeles partner with Cox, Castle & Nicholson and co-team leader of its land use and natural resources team.

But there are limits to the executive order's reach. It applies when a property owner is replacing a burnt-down home, making clear that neither CEQA nor the Coastal Act would apply, but they must comply with city or county zoning and building ordinances.

Those zoning rules may have changed in the decades since the homes were built, meaning some may be noncompliant. Government agencies can grant variances, but homeowners may face limits on how they can build under current law, attorneys said.

The brief language of Newsom's order involving the Coastal Act reiterates existing state law, several legal experts said.

DeGood, however, said the governor will probably need to update it because Malibu, for example, operates under a Local Coastal Program, or LCP, approved by the California Coastal Commission.

A city like Malibu may be concerned that the Coastal Commission might decertify its LCP if it approves rebuilding plans. "The governor suspended the Coastal Act," he said. "He didn't suspend the LCP."

Jennifer L. Hernandez, a partner with Holland & Knight LLP, said the order refers to "facilities," which might mean things like water tanks and other infrastructure.

"The order is not explicit about what kind of facilities are covered," she said.