Archives: January 2026

U.S. DEPARTMENT OF THE INTERIOR DELAYS MONARCH BUTTERFLY LISTING AND OTHER ENDANGERED SPECIES DECISIONS

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Despite concern over the monarch butterfly’s population decline, the U.S. Department of the Interior has delayed—indefinitely—the decision to list the species as threatened under the Endangered Species Act (“ESA”). The listing was expected to be finalized in mid-December 2025, following a proposal issued by the U.S. Department of Fish and Wildlife in December 2024. Instead, the Department of the Interior placed the decision on its Spring 2025 Agency Rule List as a “long-term action”—a designation that carries no deadline and effectively places the decision on hold for an undetermined period of time. The change not only delays action on the monarch butterfly but also signals broader slowdowns for many other species awaiting listing decisions.

The U.S. Fish and Wildlife Service’s December 2024 Special Status Assessment Report identified habitat loss and degradation as primary drivers of the monarch’s health decline. Chief among these threats are the conversion of grasslands to agricultural uses, the widespread application of herbicides and insecticides, continued urban development, and the compounding effects of climate change. The report concluded that these largely human-driven stressors have contributed to the ongoing loss and degradation of breeding, migratory, and overwintering habitat throughout the monarch’s North American range

If finalized, the proposed listing of the monarch butterfly as threatened under the ESA would authorize the U.S. Fish and Wildlife Service to adopt species-specific protections tailored to preventing further population decline and designate approximately 4,395 acres of critical habitat. The U.S. Department of the Interior’s decision to classify the listing as a “long-term action,” however, signals that these protections are not expected to move forward in the near term.

– Veronika Morrison

FOURTH DISTRICT HOLDS THAT THE BOARD OF FORESTRY AND FIRE PROTECTION MUST CONSIDER TYPE CONVERSION IMPACTS IN PROGRAM EIR

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In an unpublished decision, California Chaparral Institute v. Board of Forestry and Fire Protection (May 30, 2025, No. D083484), the Court of Appeal for the Fourth District, Division One, held that the State Board of Forestry and Fire Protection’s (the Board’s) certification of the Program EIR (PEIR) for its vegetation management and treatment program (the Program) violated CEQA because it failed to make findings or discuss mitigation for vegetation type conversion impacts. The court emphasized the irony of the Board’s argument that type conversion—which results in a more flammable landscape—is not a significant impact of prescribed burns.

Background

To address the State’s wildfire crisis, the Governor issued an executive order directing the Cal Fire to improve forest management and reduce barriers for prescribed fires. The Board—the body within Cal Fire tasked with developing the State’s forest policy—proposed the Program to reduce wildfire risks via controlled burning and other techniques to decrease the types of vegetation that fuel wildfires.

Public Resources Code section 4483 requires that the PEIR for the Program provide additional consideration for sensitive chaparral and coastal sage scrub plant communities, and that treatments of these species should only occur if Cal Fire finds the activity will not cause “type conversion,” meaning a shift from native shrub-dominated vegetation to vegetation dominated by weedy or non-native grasses and herbs. The PEIR included standard project requirement (SPR) BIO-5, which would require future project proponents relying on the PEIR to avoid “type conversion” where chaparral and coastal sage scrub are present. To do so, proponents must work with qualified forestry or biological experts to design treatments that prevent type conversion, evaluate impacts at an appropriate site scale, and demonstrate that the habitat function of these species would be maintained for the affected vegetation communities.

Plaintiffs California Chaparral Institute and the Endangered Habitats League (Plaintiffs) filed a petition for writ of mandate alleging violations of CEQA and Public Resources Code section 4483. Plaintiffs argued that the PEIR fell short in several key respects. Specifically, they contended the PEIR failed to analyze the risk of vegetation type conversion from native shrublands to more flammable grasslands and improperly deferred key impact analysis to future project proponents without clear standards or guidance.

The trial court denied the petition. This appeal followed.

Appellate Decision

Vegetation Type Conversion Impacts

Regarding the effects of “type conversion,” the court explained that the PEIR acknowledged a basic problem: burning chaparral and coastal sage scrub too frequently can prevent shrubs from regenerating, converting native shrublands into grasslands that are more flammable and therefore more vulnerable to wildfire. The Board assumed that this risk would be avoided because projects must follow SPR BIO-5, which is designed to “mimic” natural fire cycles and would prevent the removal of immature shrubs. The court found this assumption was unsupported by the record. The court noted that the PEIR did not clearly prohibit burning immature shrubs. The court further observed that the PEIR acknowledged that chaparral and coastal sage scrub are already burning more frequently than under natural conditions. As a result, prescribed burns are not “restoring” a natural fire regime but instead add to already excessive fire frequency—making vegetation type conversion and increased fire risk more likely. Finally, the court explained that because wildfire timing cannot be controlled, deliberately burning these shrubs more frequently will essentially guarantee that one fire or another (wild or prescribed) will eventually cause type conversion.

For these same reasons, the court also found that the Board’s conclusion that the Program would avoid type conversion impacts by requiring treatment activities that return vegetation to their natural “condition class,” which refers to how closely an area’s current vegetation and fire behavior match what would be expected under natural fire cycles, taking into account plant composition and fire frequency.

The court also rejected the Board’s reliance on a requirement to design treatments to maintain or improve the habitat function of chaparral and coastal sage scrub. It reasoned that this standard allows prescribed burns even when shrublands are within their “natural fire return interval,” which the court explained would allow even at-risk chaparral and coastal sage scrub to be reduced by more than 65 percent—meeting the PEIR’s definition of type conversion. The court further found the Board failed to show how protecting habitat function would prevent increased fire risk, and that the record did not support the conclusion that this approach would avoid vegetation conversion or wildfire impacts.

Tiering of Impact Analysis to Future Project Proponents

The court rejected the Board’s claim that increased wildfire risk could be deferred to later project-level review, tiered off the PEIR. It held that the impact was “ripe” for program-level analysis because the PEIR already defined type conversion, acknowledged that fuel-reduction treatments could cause it, and recognized that resulting grasses are more flammable and spread fire more quickly. Citing Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova (2007) 40 Cal.4th 412, 431, the court emphasized that tiering does not excuse agencies from analyzing reasonably foreseeable significant impacts. And even if tiering were appropriate, the PEIR failed to provide meaningful mitigation guidance or performance standards for future projects.

Additional Arguments

The court rejected several other defenses raised by the Board. It held that Plaintiffs were not required to submit independent expert evidence because they relied on the PEIR’s own admissions that vegetation treatments could cause type conversion, which the court found sufficient and applicable to future conditions. The court also rejected the Board’s claim that analyzing impacts solely in terms of “habitat function” satisfied CEQA, explaining that compliance with an agency’s chosen threshold does not excuse failure to address substantial evidence of other significant impacts, including increased wildfire risk.

The court further found irrelevant the Board’s argument that Public Resources Code section 4483 imposes duties only on Cal Fire and not the Board, explaining that this does not relieve the Board of its obligations under CEQA to consider reasonably foreseeable environmental impacts of the Program. Finally, the court rejected the Board’s characterization of the case as a policy dispute, noting that Plaintiffs did not challenge the general use of prescribed fire in forests and that requiring analysis of type conversion impacts does not prevent the Board from approving treatments with appropriate findings, including a statement of overriding considerations as necessary.

The court concluded the Board’s CEQA violations were prejudicial because the absence of findings left the public without meaningful information about how type conversion would be evaluated, avoided, or mitigated, and could allow continued loss of already threatened chaparral and coastal sage scrub habitats.

Remand to the Trial Court

The matter was remanded to the trial court with directions to vacate the denial of the writ petition and issue a writ consistent with the appellate court’s decision.

On November 14, 2025, the trial court issued its final judgment and writ directing the Board to correct the CEQA deficiencies in the PEIR. Until those deficiencies are remedied, the PEIR may not be used to approve projects affecting chaparral or coastal sage scrub. The court found the type-conversion issue severable, however, and allowed specified categories of critical safety projects involving these habitats to proceed.

The Board of Forestry will be publishing the Draft EIR for the forthcoming update to the Program EIR referenced in the writ in early to mid- 2026:

https://bof.fire.ca.gov/projects-and-programs/calvtp-homepage-and-storymap/

– Veronika Morrison & Christina Berglund 

CALIFORNIA CHAMBER OF COMMERCE ADVANCES BALLOT INITIATIVE AIMED AT STREAMLINING CEQA FOR “ESSENTIAL PROJECTS”

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On December 26, 2025, the California Chamber of Commerce (“CalChamber”) received title and summary for a statewide CEQA initiative titled “Building an Affordable California” (“BACA”), which would shorten lead agency review and permitting timelines, substantially narrow the scope of judicial review, and expedite litigation schedules for specific “essential projects.” If passed by a majority of voters in the fall of 2026, BACA would mark the most significant CEQA overhaul since its inception in 1970.

BACA would introduce substantial changes to CEQA review and litigation for a wide range of projects. To accomplish this, the initiative proposes the following series of key procedural and substantive reforms.

What counts as an “essential project”?

BACA broadly defines an “essential project” as one related to broadband, clean energy, housing, education, public health and safety, transportation, and water supply. The initiative further defines each category of “essential project,” ranging from residential and mixed-use developments to renewable energy generation and transmission infrastructure, medical facilities, wildfire risk-reduction projects, transit and roadway improvements, and water system upgrades.

BACA subjects all “essential projects” to labor standards. Essential housing projects must comply with AB 130’s labor requirements. In contrast, all other “essential projects” must adhere to the labor requirements applicable to environmental leadership development projects under Public Resources Code section 21183.5.

The initiative also allows an applicant with a pending application for a covered project to withdraw the application and resubmit it to avail itself of BACA’s streamlined framework. Essential housing projects receive additional protection: applications for qualifying “essential projects” may be withdrawn and resubmitted without losing vested rights under California housing laws, including the Subdivision Map Act and the Housing Accountability Act.

Strict deadlines for determination of application completeness

Agencies must issue a written determination of application completeness within 30 days of receipt; otherwise, the application is deemed complete by default. If an application is found incomplete, the lead agency must provide an exhaustive list of deficiencies. The applicant has 90 days to resubmit, and the agency may rely only on that original deficiency list when evaluating the resubmittal. Applicants may extend the 90-day resubmittal period by notifying the agency of the additional time needed and the reasons for the extension.  An applicant may challenge a determination of application incompleteness, and any appeal must be decided within 60 days; if not, the application is deemed complete by default. The initiative would provide applicants with a 90-day window to seek judicial review following a final adverse written determination.

Enhanced tribal consultation requirements

BACA would establish a two-step tribal consultation framework consisting of early initial screening followed by formal consultation. Initial screening would begin before an application is deemed complete and would require early record searches and information sharing with affiliated, federally recognized tribes, with opportunities for the tribe, lead agency, and the applicant to meet and identify resources and potential treatment measures.

Formal consultation then proceeds largely under existing CEQA law, but with enhanced requirements for early disclosure of studies and draft environmental documents, and with agreed-upon mitigation measures becoming enforceable conditions of project approval. In this way, BACA retains AB 52’s core consultation principles but moves tribal consultation earlier and includes defined timelines and outcomes directly tied to project approval.

Environmental review for “essential projects”

Once an application is deemed complete, the agency has 30 days to determine the required level of environmental review­—and that review must be completed within 365 days for an EIR, 180 days for a negative declaration or MND, or 90 days for an exemption. An applicant can request an extension of these deadlines. Notably, “days” in this context expressly excludes weekends and state holidays; all other deadlines in BACA are measured in calendar days.

If, however, an agency fails to meet the mandated deadlines, an applicant may require the agency to hold a public hearing on the project. Within 60 days of an applicant’s request for a hearing, the agency must either complete the environmental document, and the “highest-ranking decision-making body” must then hold a hearing at which the project must be approved or denied. If a recommendation from the planning commission or the planning director is needed, the initiative requires that it occur within 30 days of the applicant’s request for a hearing.

BACA also mandates public comment periods of 20 days for a negative declaration or MND and 45 days for EIRs, with extensions allowed only by court order.

Additionally, the initiative narrows the way agencies evaluate environmental impacts for “essential projects” and gives applicants greater control over the standards that apply. Agencies would be required to identify, assess, determine significance, and mitigate the project’s impacts based on compliance with “existing law,” in effect when the project application is submitted, with limited carve-outs for life-safety and building code updates. Applicants may “vest into” significance thresholds the agency published, adopted, or routinely used before the application was filed, and the agency must use those thresholds in its analysis.

Finally, after the lead agency completes CEQA review, BACA requires the lead agency to issue a final decision on any permit or approval concurrently with its final CEQA determination for the project, subject to a narrow exception for certain state agencies with evidentiary hearing requirements. Any non-lead agency with permitting jurisdiction over the project, e.g., responsible or trustee agencies, must issue a final decision 90 days from a determination of application completeness for the approval it is considering or within one day of the lead agency’s approval of the environmental document, whichever is later. If an agency fails to meet these permitting or approval deadlines, the applicant may demand that the agency approve or deny the permit or approval at a hearing that must occur within 45 days of the applicant’s demand.

Preliminary scoping and streamlined alternatives analysis process

BACA would create a voluntary preliminary scoping process paired with a streamlined alternatives analysis. Applicants who choose this path must provide advance written notice, which includes a high-level project description, to the lead agency. The lead agency and applicant must meet during this period to discuss the project, potential alternatives, and affected resources. Public input may be submitted by email, but the applicant is not required to respond. The preliminary scoping process must be completed within 60 days of the applicant’s written notice.

After which, the applicant must generate a single project alternative informed by the input received during the scoping process. The alternative must be consistent with the project’s fundamental purpose, should align with local zoning and land use policies where practicable, and should not need to be located on a different site. The alternative may include on- or off-site improvements and operational parameters designed to reduce environmental impacts.

Within 15 days following completion of the preliminary scoping process, the applicant must share a description of the project, the single proposed alternative, and the no project alternative, which must consider the reasonably foreseeable impacts in the absence of the project, including alternative uses and foregone project benefits. The lead agency then has 15 days to determine whether the applicant has complied with the streamlined scoping and alternatives requirements. If the agency does not act within that period, compliance is deemed certified by default. Any certification may be administratively appealed within 5 days, after which it becomes final.

If an applicant does not opt into this process, the standard CEQA alternatives analysis requirements would apply.

Streamlined judicial review of “essential project” approvals

BACA would require CEQA challenges to “essential projects” to be filed within 30 days of the notice of determination or exemption, and the entire case—including any appeal—must be completed within 270 days. A court may extend that deadline by up to 90 days, but otherwise extensions are permitted only with the mutual written consent of the petitioner, the public agency, and the applicant.

The initiative would also significantly restructure judicial review of “essential projects” by narrowing the scope of claims, altering standards of review, and limiting both the evidentiary record and available remedies.

  • Standard of Review: In actions challenging approval of an “essential project” for CEQA noncompliance, judicial review is confined to whether the approval complies with objective, pre-existing legal requirements, and the court may only determine whether the project approval is supported by substantial evidence in light of the whole record. Challenges based on alleged public-participation defects are further constrained to whether the error was arbitrary and capricious and resulted in prejudicial harm.
  • Administrative Record: Under BACA, the administrative record for an “essential project” is limited to materials that were publicly disclosed during the CEQA process. The record consists only of notices, studies, and other documents that the lead agency was required to distribute to the public, make available at a public repository, or post on its website; and public comments submitted during the comment period (and a narrow category of late comments), along with the agency’s responses to those comments. Materials outside this universe are excluded from the record.
  • Remedies: If a court finds that an approval is not supported by substantial evidence, it must issue a writ of mandate identifying the specific legal deficiency and the particular part, phase, or activity affected. The remedy is limited to temporarily halting only the noncompliant portion of the project until the deficiency is corrected. Courts are expressly prohibited from rescinding project approvals, and unaffected portions of the project may proceed and are insulated from further CEQA challenge once compliance is achieved.
  • Subsequent Approvals: Once a project approval is either not challenged, upheld in court, or brought into compliance through a court-approved return to the writ, no further CEQA actions may be filed to challenge later phases, construction, or subsequent approvals of the project. In addition, minor project modifications that do not create new significant impacts or substantially worsen previously identified impacts are expressly insulated from further CEQA challenge.
  • Injunctive Relief: A court may grant injunctive relief only upon a showing of clear and convincing evidence of an unmitigable adverse impact on public safety, and any such relief is limited to a temporary injunction.

The Building an Affordable California Initiative is available online at: https://oag.ca.gov/system/files/initiatives/pdfs/25-0023A1%20%28%26quot%3BEssential%20Projects%26quot%3B%29.pdf

For additional information or questions, please contact Christina L. Berglund (cberglund@rmmenvirolaw.com) or Blaine R. Dyas (bdyas@rmmenvirolaw.com)