DOJ Civil Division Refocuses Affirmative Enforcement Priorities
Key Takeaways from DOJ’s 2025 Civil Division Mandate
Expanded Use of the False Claims Act (FCA) 1The government is broadening its application of the FCA beyond traditional garden-variety fraud. As discussed in Polsinelli’s May 27 update, the expansion includes a focus on bringing actions against entities receiving federal funds that allegedly discriminate on the basis of race, sex or religion through unlawful or overbroad DEI programs. Similarly, the DOJ will pursue institutions that allow or fail to prevent antisemitism under a false certification theory of liability under the FCA.
Increased Risk for Healthcare ProvidersProviders offering gender-affirming care to minors may face FCA liability for billing practices, diagnosis coding and drug use, especially where services contravene the administration’s policy objectives.2
Litigation Against “Sanctuary” JurisdictionsThe government intends to bring affirmative preemption lawsuits against jurisdictions that have state and local laws that allegedly obstruct federal immigration enforcement.
Denaturalization as a Weapon of Civil EnforcementThe government has been tasked with expanding denaturalization actions beyond national security cases to include fraud, material omissions, or criminal conduct that would have rendered individuals ineligible for naturalization.
On June 11, 2025, Assistant Attorney General for the Civil Division, Brett A. Shumate issued a memorandum titled Civil Division Enforcement Priorities (Enforcement Memo) directing all Civil Division lawyers to prioritize investigations and enforcement actions advancing the following five priorities: (1) combating alleged discriminatory practices such as certain DEI initiatives; (2) addressing antisemitism; (3) investigating gender-related medical interventions performed on minors; (4) challenging the legal validity of sanctuary jurisdictions; and (5) prioritizing denaturalization proceedings. These enforcement priorities mark a significant realignment of the Civil Division’s focus and signal a more assertive and ideologically driven use of civil enforcement tools – particularly the FCA – to advance policy objectives tied to discrimination, immigration, gender-related healthcare and federal benefits programs.
While in recent years the FCA has largely been used to combat fraud in healthcare and government contracting, under the Enforcement Memo, any organization receiving federal funds – including educational institutions, healthcare providers and local governments – should expect heightened scrutiny over compliance with civil rights laws. Recipients of federal funds that use race- or sex-based preferences in ways the government views as discriminatory may now face FCA liability under the umbrella of “civil rights fraud.” Additionally, Civil Assistant United States Attorneys (AUSAs) are to prioritize cases against entities alleged to have permitted antisemitism, particularly in educational settings, and to focus on whether such conduct violates federal grant conditions or constitutes a false certification for FCA liability purposes.
The Enforcement Memo further directs Civil AUSAs to pursue FCA claims against healthcare providers and pharmaceutical companies that bill federal programs for “impermissible services” related to gender dysphoria, including puberty blockers, hormone therapies, surgical interventions and other treatments used in gender-affirming care.3 This includes scrutiny of diagnosis coding practices and potentially alleging violations of the Food, Drug, and Cosmetic Act.4 Additionally, billing for gender-affirming care provided to minors, particularly in jurisdictions with restrictive laws, may be construed as knowingly submitting a false claim.
The Enforcement Memo also articulates a robust denaturalization initiative, expanding denaturalization as a potential consequence for those who obtained citizenship through fraud or were later involved in terrorism, trafficking or other disqualifying conduct.5 While denaturalization has long existed as a legal remedy, using it as a central civil enforcement mechanism marks a profound shift in DOJ Civil Enforcement. The prioritization of denaturalization carries significant legal and operational implications for both individuals and institutions. This approach may lead to an increase in civil litigation initiated by the government, particularly in cases where criminal prosecution is not feasible or has already concluded. This structured approach underscores the DOJ’s intent to use denaturalization not only as a corrective measure but also as a deterrent and enforcement tool.
The DOJ’s new enforcement priorities reflect a strategic realignment of civil enforcement tools to advance specific policy objectives.
[1] 31 U.S.C. §§ 3729–3733 (2023).
[2] See, e.g.,Exec. Order No. 14,168, Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government, 90 Fed. Reg. 8615 (Jan. 30, 2025); Exec. Order No. 14,187, Protecting Children from Chemical and Surgical Mutilation, 90 Fed. Reg. 8771 (Feb. 3, 2025); Memorandum from Pamela Bondi, Att’y Gen., Preventing the Mutilation of American Children (Apr. 22, 2025).
[3] See id.
[4] 21 U.S.C. §§ 301–399i (2023).
[5] 8 U.S.C. § 1451(a) (2023).
City of Los Angeles Approves New Ordinances to Encourage Housing Development
California’s housing crisis has necessitated innovative legislative solutions at the state and local level to increase the supply of affordable housing across the state. Cities are required by state law to plan for a specified amount of new housing development in accordance with the targets set by the Regional Housing Needs Allocation (RHNA). According to the RHNA Allocation Plan, the City of Los Angeles has an allotment of 456,643 new units for the period from 2021 to 2029, which is more than five times greater than the City’s previous RHNA allotment. The City acknowledged in its 2021-2029 Housing Element that it is experiencing a severe housing crisis and would come up significantly short of its allotment based on its then-existing zoning.
As required by state law, the City designed a Housing Element Rezoning Program (Rezoning Program) to accommodate its housing allotment, which aims to increase the supply of housing across the City. The Rezoning Program includes updates to the Downtown Community Plan and the Hollywood Community Plan as well as the adoption of three related ordinances, which were approved by the Los Angeles City Council on February 7, 2025. These ordinances are referred to as the Citywide Housing Incentive Program (CHIP) Ordinance, the Housing Element Sites and Minimum Density Ordinance, and the Resident Protections Ordinance. These amendments to the Los Angeles Municipal Code are expected to benefit multi-family housing developers by streamlining review processes for project approvals and providing additional incentives for qualifying mixed-income and 100% affordable housing projects.
Some pro-housing advocates believe that the Rezoning Program is inadequate to meet the City’s housing obligations, as evidenced by a recent lawsuit filed by YIMBY Law and Californians for Homeownership against the City of Los Angeles. While the results of that litigation remain to be seen, the CHIP Ordinance does provide a helpful starting point by offering incentives and removing procedural barriers to project approval for qualifying projects across the City.
CITYWIDE HOUSING INCENTIVE PROGRAM ORDINANCE
The CHIP Ordinance includes three options for local density bonus programs, updating the City’s implementation of the State’s Density Bonus Program (DBP), adopting a Mixed-Income Incentive Program (MIIP), and creating an Affordable Housing Incentive Program (AHIP) for 100% affordable housing projects. These programs provide new incentives for qualifying mixed-income and 100% affordable housing projects with an aim towards increasing the supply of housing across the City, particularly near public transit, along major corridors, and in areas identified as Higher Opportunity Areas.
CITY’S DENSITY BONUS PROGRAM
The CHIP Ordinance revises the City’s implementation of the State DBP to align the review processes and incentives under the state and local programs. The DBP incentivizes providing affordable units by offering increased density as well as additional incentives and waivers of certain development standards for qualifying housing projects that include the requisite percentages of affordable housing units.
One upshot of the CHIP Ordinance is that it allows for increased density bonus of up to 100% in line with Assembly Bill (AB) 1287, which Governor Newsom signed into law on October 11, 2023. AB 1287 included an amendment to the State Density Bonus Law to provide an additional density bonus and incentives for qualifying projects providing moderate income units or very low-income units. Specifically, under AB 1287, a project providing the requisite percentage of affordable units can obtain the 50% maximum density bonus under the prior law as a base bonus as well as an additional density bonus up to 100% as an additional bonus in exchange for the provision of the requisite percentage of additional affordable units.
The CHIP Ordinance incorporates the additional bonus and incentives provided by AB 1287 into the City’s implementation of the State’s DBP. Like the State’s DBP, the CHIP Ordinance outlines the requisite percentages of affordable units provided for each income level. For units offered for rent, the minimum percentages of units provided for each income level to qualify for the Program are 5% very low income or 10% lower income. For units offered for sale, the minimum percentages of units are 5% very low income, 10% lower income, or 10% moderate income. The percentage of density bonus units that a project is entitled to depends on the percentage of very-low income, lower income, and moderate income (if for sale) provided. Like the State’s DBP, the maximum density bonus a project is entitled to is a 50% base bonus if it provides 15% very-low income or 24% lower income units for rent or 44% moderate income for sale. In addition, the CHIP Ordinance provides that a project may qualify for an additional bonus ranging from 20% up to 50% if the project provides the requisite percentage of very-low income or moderate-income units.
The CHIP Ordinance also provides new density bonuses and incentives for qualifying projects that provide housing for specified target populations, including senior citizens, transitional foster youth, disabled veterans, homeless persons, and lower income students.
The CHIP Ordinance updates the City’s DBP to reflect that a qualifying project may request up to four on- or off-menu incentives subject to the review process below.
Under the CHIP Ordinance, more projects will be eligible for ministerial review, avoiding uncertain and lengthy review processes, including environmental review under the California Environmental Quality Act (CEQA). The CHIP Ordinance updates the review processes for housing projects depending on the type of request under the DBP. Projects that request only the allotted number of incentives from the base incentives and menu of incentives provided in the CHIP Ordinance are entitled to a ministerial approval by the City’s Department of Building and Safety unless certain limited exceptions apply. This language in the CHIP Ordinance is consistent with the Department of City Planning’s current policy to ministerially review qualifying housing projects requesting only on-menu incentives.
The CHIP Ordinance also creates a new ministerial review process referred to as the Expanded Administrative Review (EAR) process, which applies to projects requesting public benefit options or off-menu incentives. The EAR process entails submitting an application and eligibility checklist to the Affordable Housing Services Section at the Metro/Downtown Development Services Center. The submitted documents are reviewed by the Department of City Planning to assess compliance with applicable regulations and standards. An informational public hearing may be required depending on the project or if otherwise required by the Code. Upon the Department’s determination that the proposed project complies with applicable standards and regulations, projects must be developed in keeping with the approved plans. Modifications of no more than ten percent may be permitted, but, for more extensive modifications, an applicant is required to restart the EAR process.
If the applicant requests to waive or reduce development standards, exceed the maximum density bonuses, or proceed with any other actions requiring discretionary approval, then the applicant will be required to obtain a Class 3 Conditional Use Permit, which is subject to discretionary approval by the City Planning Commission. Note that the CHIP Ordinance does not streamline other discretionary actions that may be applicable to a housing project, such as a General Plan Amendment, Zone Change, Project Review, or other discretionary action.
MIXED-INCOME INCENTIVE PROGRAM
The Housing Element identifies The Mixed-Income Incentive Program (MIIP) consists of three sub-programs designed to incentivize mixed-income housing development near public transit stops and in higher-opportunity areas: the Transit Oriented Incentive Area Program, the Opportunity Corridors Program, and the Opportunity Corridors Transition Program.
To qualify under these sub-programs, the housing project must meet the generally applicable requirements of MIIP as well as the specific requirements of the sub-program. Regardless of which program the project is applying for, the project must meet certain requirements, including providing a baseline of either four or five units depending on the program, meeting specific program requirements, reserving the requisite percentage of affordable units, and meeting applicable zoning and other requirements.
TRANSIT ORIENTED INCENTIVE AREA PROGRAM
The Transit Oriented Incentive Area (TOIA) program is intended to increase the supply of affordable housing near public transportation, particularly in areas identified as Higher Opportunity areas. Eligible projects under the Transit Oriented Incentive Area (TOIA) program are those located within the requisite distance to a major transit stop based on the criteria in the CHIP Ordinance. The TOIA program differentiates projects into particular incentive sets based on proximity to a qualified major transit stop and location within one of the City’s Opportunity Areas as identified on the California Tax Credit Allocation Committee (CTAC) Opportunity Area map. The base incentives are specified for each incentive set. Within each set, projects in Higher Opportunity Areas receive increased density and floor area ratios (FAR) compared to projects located in the Moderate or Lower Opportunity Areas within the same incentive set.
As with the City’s DBP, eligible projects qualify for up to four incentives. Compared to the City’s DBP, the TOIA program offers additional base incentives, including FAR and height, tailored to the incentive sets as well as additional on-menu incentive options. Significantly, the TOIA program allows for density increases beyond the density bonuses provided under the City’s DBP. If the property’s zoning allows for at least five units, then projects are eligible for density bonuses starting at 100% for Moderate and Lower Opportunity Areas in the T-1 incentive set and rising up to density limited only by FAR in Higher Opportunity Areas in the T-2 and T-3 incentive sets.
OPPORTUNITY CORRIDORS PROGRAM AND OPPORTUNITY CORRIDORS TRANSITION PROGRAM
The Opportunity Corridors (OC) program envisions new mid-rise affordable housing developments along major transit-served corridors within the City’s Higher Resource Areas as identified on the CTAC Area map. Like TOIA, OC differentiates projects into particular incentive sets. Like TOIA, OC offers additional base incentives, including FAR and height, and on-menu incentives compared to the City’s DBP. The base incentives are specified for each incentive set for the FAR and height. The OC program provides more generous base incentives than the TOIA program, including density limited only by floor area and increased FAR.
The Opportunity Corridors Transition (OCT) program permits low-rise housing development on properties in higher opportunity areas zoned as R2 or RD, allowing for small-scale development in low-density multi-family zones near Opportunity Corridors. The concept is that these low-rise housing developments will provide transitions between single-family houses and mid-rise multi-family apartment buildings. The OCT program differentiates by subareas based on proximity to an Opportunity Corridor as discussed above (CT-1, CT-2, and CT-3). The number of units required at each income level in order for the project to qualify for incentives depends on the OCT Incentive Area in which it is located. The program allows for between four to sixteen units depending on the subarea in which it is located. The other base incentives are also tailored to the applicable subarea but include a range of FAR and height allowances. Note that the floor area ratio incentives are determined based on the number of density bonus units. A project approved under the OCT program must also meet various performance standards, including satisfying specific requirements related to common open space and entryway standards.
AFFORDABLE HOUSING INCENTIVE PROGRAM
The Affordable Housing Incentive Program (AHIP) provides new incentives for 100% affordable housing projects in addition to the incentives offered under the State DBP. Like the MIIP programs, AHIP is intended to encourage housing development near transit and in areas identified as Higher Opportunity Areas. For example, AHIP provides additional incentives for projects located in Higher or Moderate Opportunity Areas or within a half mile of a major transit stop or very low vehicle travel area, including density limited only by floor area. AHIP also provides tailored incentives for qualifying 100% affordable housing projects citywide. Compared to the other programs in the CHIP Ordinance, AHIP provides an additional incentive for a total of up to five incentives for qualifying projects.
Additionally, AHIP adds “P” Parking zones and “PF” Public Facilities zones to the types of zones eligible for 100% affordable housing projects and covers a variety of project types, including public land projects, faith-based organization projects, and shared equity projects that provide the required percentage of restricted affordable units and meet specific ownership criteria based on the project type. Specifically, AHIP incentivizes 100% affordable housing on Public Facilities “PF” zones and on land owned by public agencies, 80-100% affordable housing on land owned by faith-based organizations, and 80-100% affordable housing on land owned by community land trusts or limited equity housing cooperatives. Under certain circumstances, these project types may be subject to the new ministerial EAR process described above.
STREAMLINED CEQA ENVIRONMENTAL REVIEW
One strategy that opponents of affordable housing projects frequently employ is leveraging the lengthy environmental review process under CEQA to delay and drive up the costs of housing projects. These delay tactics can be fatal, particularly for affordable housing projects which are often already limited by tight cost margins. Even the threat of CEQA-related delays influences whether developers and investors are willing to proceed with an affordable housing project due to uncertainties about timing and costs.
The City’s Housing Element addresses these concerns by streamlining the environmental review process under CEQA for most new housing developments. Pursuant to CEQA, an Environmental Impact Review was approved for the City’s Housing Element, which examines a vast range of environmental impacts from the proposed housing programs, including the potential environmental impacts of housing projects expected to qualify for the programs outlined above. Thus, rather than undergoing a full CEQA review for each individual housing development utilizing these programs, housing developers are permitted to use the standardized CEQA Streamlining Checklist Form (Form CP-4089) as the environmental review document. Streamlining CEQA review significantly reduces the timeline for project approvals and removes another barrier for developers and investors considering moving forward with a housing project.
CONCLUSION
The incentives programs included in CHIP Ordinance and the streamlined CEQA environmental review process are aimed at lowering procedural barriers that steer developers and investors away from affordable housing projects. While some pro-housing advocates believe that these changes are inadequate to meet the City’s obligations under state law, these programs do provide a helpful starting point for developers trying to make affordable housing projects pencil out.
Beyond Sackett: California’s Expanding Role in Wetlands Permitting and the Future of “Waters of the State”
California’s regulatory authority over “waters of the state” continues to grow even as the federal definition of “Waters of the United States” (WOTUS) narrows under shifting legal and regulatory frameworks. In Sackett v. EPA (598 U.S. 651 (2023)), the U.S. Supreme Court significantly restricted the scope of federal authority over waters and wetlands under the Clean Water Act (CWA), rejecting the “significant nexus” test from Rapanos v. United States (547 U.S. 715 (2006)). The Court held that only “relatively permanent, standing or continuously flowing” waters with a “continuous surface connection” to navigable, interstate waters qualify as federally jurisdictional WOTUS.
While the full impact of Sackett remains in flux, it is clear that many aquatic features previously protected under federal law are no longer considered jurisdictional WOTUS. This includes non-wetland features such as isolated waters and ephemeral streams, as well as wetlands that do not physically adjoin a jurisdictional waterbody.
In California, the practical result of Sackett is that the state is now poised to take on an expanded role in wetlands protection. Although California has not yet adopted comprehensive regulatory reforms to address the jurisdictional gap left by Sackett, recently proposed Senate Bill 601 (SB 601) signals the state’s intention to assert regulatory authority over formerly federally protected waters. This shift could have significant implications for developers, local governments, and permitting agencies.
FEDERAL DEVELOPMENTS
Building on Sackett, recent federal agency actions signal a further narrowing of federal jurisdiction. In March 2025, the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) issued a joint memorandum to field staff, clarifying implementation of Sackett’s “continuous surface connection” test. Around the same time, these agencies also published a notice in the Federal Register — colloquially dubbed the “WOTUS Notice: The Final Response to SCOTUS” — announcing a forthcoming public process to solicit stakeholder input on future rulemaking related to WOTUS and wetlands. Both documents reflect an intent to further restrict the federal reach of the CWA.
As a result, more land development activities that involve wetlands or aquatic features may proceed without triggering the need for federal permits under CWA §§ 402 (National Pollutant Discharge Elimination System (NPDES) permitting) or 404 (dredge and fill).
CALIFORNIA’S WETLAND DEFINITION AND POLICY LANDSCAPE
Wetlands no longer regulated under the CWA remain protected in California under the Porter-Cologne Water Quality Control Act (Porter-Cologne), which governs discharges to “waters of the state.” In 2024, Assembly Bill 2875 established a state policy to achieve both no net loss and long-term net gain of California’s wetlands, reinforcing this broader regulatory mandate.
Historically, California collaborated closely with the Corps in the review and permitting of projects impacting wetlands, particularly through the CWA Section 401 water quality certification process. With federal jurisdiction curtailed post-Sackett, this collaboration has diminished, and California agencies — especially the State Water Resources Control Board (State Water Board) and the nine Regional Water Quality Control Boards (Regional Water Boards) — are expected to fill the regulatory void.
Although the State Water Board adopted a wetlands definition and state dredge-and-fill procedures in 2021, these rules predate Sackett. In 2023, the State Water Board issued a set of frequently asked questions (FAQs) acknowledging the Sackett Court’s decision and previewing several of the regulatory issues that have since materialized.
With fewer projects eligible for 401 certification, the Regional Water Boards have shifted toward processing more state-only Waste Discharge Requirements (WDRs). Unlike the streamlined, administrative CWA § 401 process, WDRs typically involve a minimum three-month public process. While General Orders and Programmatic WDRs offer expedited pathways, the most efficient option remains structuring a project to maintain a federal hook, thereby preserving access to the 401 certification route. Post-Sackett, however, this is increasingly difficult for many projects.
PROPOSED SENATE BILL 601
State legislators are seeking to reaffirm California’s commitment to filling any regulatory gaps left by Sackett through SB 601, which would expressly extend protections to “nexus waters”— a newly defined term intended to encompass waters no longer covered by federal law. While many of the bill’s provisions are largely duplicative of existing state authority under Porter-Cologne, several provisions of SB 601 would expand enforcement tools and compliance obligations, raising potential concerns within the development community.
Among its current provisions, SB 601 would:
Define “nexus waters” broadly to include all waters of the state that are also not navigable waters, with limited exceptions.
Add a citizen suit provision, allowing an action to be brought in the public interest in superior court, by any “person who has suffered an injury in fact,” to enforce either state water quality standards or federal standards in effect as of January 19, 2025.
Eliminate the requirement that Regional Water Boards consider factors such as economic impacts and housing needs when establishing water quality objectives for nexus waters.
Authorize the State Water Board to adopt water quality control plans for all nexus waters.
Make a failure to file a required report of waste discharge under WDRs subject to civil liability and criminal penalties under California law and incorporate analogous provisions of the CWA.
Require the State Water Board’s executive director to increase civil monetary penalties for certain violations of WDRs to account for inflation, but not to exceed 150% each year other than the first year.
LOOKING AHEAD
Taken together, the narrowing of the federal CWA’s reach and proposed SB 601 may impose additional burdens on project proponents, including regulatory uncertainty, permitting delays, and higher compliance costs associated with wetlands and water quality regulation. As SB 601 advances through the legislative process, stakeholders should monitor its progress closely and prepare for continued evolution in California’s approach to wetlands permitting.
Birds, Trees, and Bees – Oh My! Practical Guidance for Addressing Candidate Species in CEQA Analysis
Several high-profile species — including the burrowing owl, Crotch’s bumble bee, western Joshua tree, western spadefoot toad, and the monarch butterfly — have recently been elevated to candidate status under either the California Endangered Species Act (CESA) or proposed for listing under the federal Endangered Species Act (FESA). This growing list of species carry significant implications for project proponents navigating environmental review under the California Environmental Quality Act (CEQA).
UNDERSTANDING THE LEGAL LANDSCAPE
Under CESA, candidate species receive the same legal protections as listed species, meaning any potential “take” (defined as hunting, pursuing, catching, capturing, or killing) is prohibited without an Incidental Take Permit (ITP) or other express authorization from the California Department of Fish and Wildlife (CDFW). Conversely, species proposed for listing under FESA are not afforded legal protections until and unless formally listed.
Nonetheless, CEQA requires evaluation and mitigation of project impacts to all special status species, including candidates and those proposed for listing. This is especially relevant for projects with a federal nexus (e.g., those involving federal funding, permits, or approvals), as federal agencies must ensure their actions do not jeopardize species proposed for listing under FESA. As a result, agencies frequently assess impacts on such species and may incorporate proactive mitigation measures.
CEQA IMPLICATIONS: WHY EARLY REVIEW MATTERS
For project proponents, identifying special-status species during early due diligence is critical under CEQA. Early recognition of such species can help avoid costly delays during biological studies, agency consultation, and permitting.
Biological technical reports should be prepared with an understanding of the evolving regulatory landscape and incorporate agency-approved survey methods and mitigation protocols. These reports have a direct influence on mitigation cost, scope, and timing.
CEQA documents should anticipate the potential for future listings under CESA or FESA. Failure to adequately assess biological resources may lead to unauthorized take, trigger regulatory enforcement or litigation, or necessitate supplemental CEQA review, resulting in further project delays and increased costs.
Accordingly, mitigation measures proposed in CEQA documents should reflect current species — specific requirements and be grounded in applicable regulatory guidance. It is also prudent to include language confirming that additional permits (such as ITPs) will be obtained if necessary, and that mitigation will be implemented in consultation with CDFW or the U.S. Fish and Wildlife Service (USFWS).
CANDIDATE SPECIES SNAPSHOT
As detailed in our previous legal alerts, the western burrowing owl (Athene cunicularia hypugaea) was designated a CESA candidate in October 2024 and remains under review. Full take protections apply during this candidacy period. CDFW’s 2012 Staff Report on Burrowing Owl Mitigation continues to largely guide burrowing owl avoidance, minimization and mitigation approaches. However, CDFW has, in some cases, asserted that ITPs may now be necessary for certain relocation or habitat modification activities.
Crotch’s bumble bee (Bombus crotchii) was initially declared a candidate species in 2019. Following litigation and reinstatement as a CESA candidate species in 2022, CDFW issued new survey protocols for candidate bumble bees in 2023. These require site-specific surveys in areas with suitable habitat and recommend biological monitoring where bees are not observed but habitat remains viable. If bees are detected, project proponents must either avoid impacts entirely or obtain an ITP.
The western Joshua tree (Yucca brevifolia) is currently protected under the Western Joshua Tree Conservation Act (Act), following a deadlocked vote by the California Fish and Game Commission (Commission) in 2022 as to whether to formally list the species under CESA. As detailed in our previous alerts, the Act prohibits take without express authorization and mitigation, and requires CDFW to draft and implement a conservation plan. CDFW first released a draft Conservation Plan in December 2024, which remains under agency and public review. Final adoption is expected by June 30, 2025, though it is possible that it may trail until August. In the meantime, CEQA mitigation should accommodate fee payments, relocation plans, and/or other CDFW-approved measures.
The western spadefoot toad (Spea hammondii) was proposed for listing under FESA in December 2023. While the public comment period closed in February 2024, a final listing decision has not yet been issued. The species remains a candidate, and although no critical habitat has been proposed, it is already recognized as a California Species of Special Concern and must be evaluated under CEQA. While USFWS has not released species-specific guidance, best management practices developed for military installations by the Department of Defense offer practical frameworks for surveys, monitoring, and mitigation.
The monarch butterfly (Danaus plexippus) was proposed for listing as a threatened species under FESA in December 2024, as discussed in our prior legal alert. The proposed rule includes critical habitat designations across seven coastal California counties, as well as a 4(d) rule exempting certain conservation activities from take prohibitions. While the original public comment period closed in March 2025, USFWS subsequently reopened it, and comments last closed on May 19, 2025. A 12-month status is now underway. Although the monarch is not yet listed, CEQA documents — especially for projects with a federal nexus — should evaluate potential impacts and incorporate avoidance or mitigation measures where appropriate.
RECOMMENDATIONS FOR PROJECT PROPONENTS
To reduce permitting risk and ensure CEQA defensibility, project proponents should:
Conduct early biological due diligence, particularly where candidate or proposed species habitat may be present.
Prepare clear, defensible biological technical reports using current survey protocols and best available data.
Incorporate mitigation strategies into CEQA documents that reflect current agency guidance — even while CESA or FESA listing decisions are pending.
Include mitigation language in CEQA documents anticipating the need for future permits and consultation with resource agencies if listings become final.
FINAL THOUGHTS
With multiple listing decisions anticipated over the next one to two years, early planning and adaptive CEQA strategies are essential. By proactively addressing the potential presence of candidate and proposed species, project proponents can reduce regulatory and legal risk while keeping entitlement timelines on track.
Air District Asbestos Rule Will Affect Demolition Activities for Facilities Damaged by the Los Angeles Wildfires
Owners and operators of facilities damaged or destroyed by the recent Los Angeles-area wildfires should be aware of the risks posed by toxic contaminant releases during cleanup and, in particular, the regulatory requirements imposed by South Coast Air Quality Management District (Air District) Rule 1403 to protect the public from such releases. Owners and operators are ultimately responsible for compliance with Rule 1403, even when contractors perform most or all the work.
BACKGROUND
Generally, Rule 1403 imposes survey, notification, work practice, and recordkeeping requirements on owners and operators who engage in “demolition” and “renovation” activities to protect workers and the public from the potential release of airborne asbestos fibers. Rule 1403 is clear that “a facility destroyed by fire… remains subject to this rule’s provisions,” and debris cleanup activities may — and often do — qualify as the “renovation” or “demolition” of the facility.
Asbestos, which is a type of toxic contaminant covered by Rule 1403, is commonly found in facilities built or renovated prior to the early 1980s, particularly in roofing and flooring products, caulks, mastics, and insulation, and may also be found in facilities constructed or renovated after that time. When inhaled, asbestos is known to cause damage to the lungs and may result in long-term serious health problems. It has been classified by multiple federal agencies as a human carcinogen and can also cause asbestosis, a chronic lung disease characterized by shortness of breath, coughing, fatigue, and other serious symptoms. Due to these health hazards and its common use in construction and other industries, asbestos was one of the first hazardous air pollutants to be regulated under the Environmental Protection Agency’s National Emission Standards for Hazardous Air Pollutants (NESHAP) regulations in the early 1970s.
COMPLIANCE
Again, owners and operators are ultimately responsible for compliance with Rule 1403, even when contractors perform most or all the work. The risks of noncompliance are substantial. In addition to the health and safety risks posed by improper handling and release of asbestos-containing materials, civil and even criminal penalties are possible. Civil penalties currently start at $5,000 per violation, per day for strict liability violations, and quickly rise to $25,000 for negligent violations, $75,000 for intentional violations, and up to $1 million for corporations that engage in intentional, willful, or reckless violations that cause great bodily injury or death.
In response to the damage caused by the recent Los Angeles-area wildfires, Governor Newsom recently issued executive orders waiving or suspending certain regulatory requirements that may impede rapid response and rebuilding efforts. Rule 1403 has not been the subject of any such order and may not be included in any future orders because it addresses a serious health risk for the public, relief workers, and contractors, and it implements the federal NESHAP regulations, which are not waivable by the state. In recently issued guidance for cleaning up fire-damaged debris, see here, the Air District confirmed that owners and operators that opt out of the “no-cost-to-residents” debris cleanup being conducted by the U.S. Army Corps of Engineers must comply with Rule 1403.
RULE 1403 REQUIREMENTS
Pre-Activity Survey and Notification
Before any demolition or renovation activity may begin, the owner/operator must contract with a Cal/OSHA certified inspector to survey the facility for the presence of asbestos-containing materials (ACM). If the survey identifies any suspected ACM, a sample of that material must be taken and analyzed in a qualified laboratory according to specified procedures. Analysis of suspected ACM is not required if the owner/operator elects to treat it as ACM. If the asbestos survey identifies ACM that will be disturbed by the renovation or demolition work (or the owner/operator elects to treat building materials as ACM), the owner/operator must contract with a Cal/OSHA registered Abatement Contractor to properly address the ACM. The Abatement Contractor must be from a different entity than the certified inspector.
Notification requirements depend on whether the work is categorized as a demolition (the “wrecking or taking out of any load-supporting structural member”) or renovation (any other alteration of a facility). The Air District must be notified prior to the start of any demolition activities whether the survey identified ACM or not. For non-exempt renovation activities, the Air District must be notified only if the initial survey identified ACM that will be removed. Notification is required no later than 10 working days before any work begins, though shorter notification periods may be available for emergency demolition or renovation operations.
Renovation and Demolition Procedures
Rule 1403 contains specified procedures that Abatement Contractors must implement when removing ACM. Generally, Abatement Contractors are free to choose among these procedures, but where ACM has been damaged in a fire, or an owner/operator elects to treat building materials as ACM without a survey or laboratory analysis, they must use “Procedure 5–Approved Alternative.” Procedure 5 requires an Abatement Contractor to develop a customized plan for the removal of ACM from a facility and, importantly, obtain Air District approval prior to the start of any related renovation or demolition activities. The Air District has affirmatively stated that the review and approval of Procedure 5 plans is required even in emergencies and specifically for the cleanup of wildfire debris. To date, the Air District has not released any approved standardized “Procedure 5” plan for wildfire debris cleanup, which means individual plan development and approval is required.
Once renovation or demolition activities have begun, the Abatement Contractor must follow specific requirements for the removal, handling, and disposal of ACM. The owner or operator of the facility being demolished or renovated must keep certain records for at least three years, including copies of survey-related documents, notifications to the Air District, waste shipment records, and Abatement Contractor qualifications.
Key Exemptions
Owner–occupants of residential single-unit dwellings that personally conduct a renovation are exempt from the Rule 1403 requirements.
Renovations of single-unit dwellings where less than 100 square feet of ACM will be removed or stripped are exempt from the survey requirements of 1403.
Renovations where less than 100 square feet of ACM will be removed or stripped are exempt from the notification requirements of Rule 1403.
Council of the European Union Agrees Mandate to Streamline CSRD and CSDDD Requirements
On 23 June 2025, the Council of the European Union (“Council”) endorsed its negotiating mandate on the European Commission’s Omnibus I proposal, which aims to streamline the Corporate Sustainability Reporting Directive ((EU) 2022/2464) (“CSRD”) and the Corporate Sustainability Due Diligence Directive ((EU) 2024/1760) (“CSDDD”). This initiative forms part of a broader EU strategy to reduce regulatory complexity and enhance the competitiveness of European businesses.
The application of CSRD requirements for companies not yet reporting has already been delayed by two years under the “Stop-the-clock” mechanism adopted on 14 April 2025, with CSDDD’s implementation also delayed. The mandate now agreed by the Council is with regards to the proposed changes in scope of companies needing to comply with CSRD and CSDDD, alongside some of the substantive requirements of CSDDD.
Key Positions in the Council’s Mandate
1. Corporate Sustainability Reporting Directive (CSRD):
Scope Reduction: The Council supports raising the employee threshold to 1,000 employees (up from 250), that must be met as mandatory criteria and excluding listed SMEs from the CSRD’s scope.
New Financial Threshold: A new €450 million net turnover threshold is introduced to further limit the number of in-scope companies — this is a significant uplift from needing to meet either a financial threshold of €50 million in net turnover and/or a balance sheet total exceeding €25 million. It also aligns with the existing threshold for CSDDD.
Review Clause: A provision is included to allow future reassessment of the scope, ensuring sufficient availability of sustainability data across the market.
Postponement Measures:
2. Corporate Sustainability Due Diligence Directive (CSDDD):
Higher Applicability Thresholds: The Council proposes limiting CSDDD to companies with at least 5,000 employees and €1.5 billion in net turnover, focusing on those best equipped to manage due diligence obligations. This is a very significant uplift from €450 million net turnover and 1,000 employees as had previously been proposed.
Risk-Based Approach: The due diligence model shifts from an entity-based to a risk-based approach, targeting areas where adverse impacts are most likely. Companies will therefore conduct a general scoping exercise rather than comprehensive mapping.
Tier 1 Limitation: Obligations to be confined to a company’s own operations, subsidiaries and direct business partners, with a review clause for potential future expansion.
Climate Transition Plans: Companies must adopt climate change mitigation transition plans, but the obligation is deferred by two years. Supervisory authorities will be empowered to advise on their design and implementation.
Civil Liability: The Council maintains the Commission’s proposal to remove the EU-wide harmonised liability regime, leaving enforcement to national legal systems.
Transposition Deadline: The deadline for Member States to transpose the CSDDD is postponed to 26 July 2028.
Next Steps
The Council’s mandate paves the way for interinstitutional negotiations with the European Parliament and the European Commission. However, formal discussions can only commence once the European Parliament has established its own negotiating position, which is ongoing.
Now Effective: Builder’s Remedy 2.0
AB 1893 (Wicks) significantly modified the so-called “Builder’s Remedy” under the Housing Accountability Act (Gov. Code § 65589.5) (HAA) effective January 1, 2025.
As explained in our prior legal alert, the Builder’s Remedy applies when a local jurisdiction has not adopted an updated Housing Element in substantial compliance with State Housing Element Law (Gov. Code § 65580, et seq.), in which case the local jurisdiction cannot deny a qualifying housing development project even if it is inconsistent with the local general plan and zoning ordinance (subject to limited exceptions).
The following is a summary of the notable HAA amendments that apply to qualifying Builder’s Remedy projects under AB 1893. Please note that AB 1893 also amended other sections of the HAA.
PROJECT “GRANDFATHERING” & CONVERSIONS
AB 1893 includes the following provisions to help advance pipeline projects:
Builder’s Remedy projects with a housing development project application “deemed complete” before January 1, 2025 are “grandfathered,” meaning that the prior version of the HAA applies to the project unless the project sponsor chooses to be subject to any of the new or modified HAA provisions under AB 1893.
“Deemed complete” is defined to mean that a SB 330 preliminary application (pursuant to Gov. Code § 65941.1) has been submitted or, absent that, a complete (full) development application has been submitted (pursuant to Gov. Code § 65943).
An existing Builder’s Remedy project may be converted to an AB 1893 Builder’s Remedy project, so long as the original housing development project application is “deemed complete” before January 1, 2025 — “even if the revision results in the number of residential units or square footage of construction changing by 20 percent or more” (i.e., even if vesting under SB 330 would not otherwise be retained.) This means that under that scenario, the density of the Builder’s Remedy project could be increased or decreased to meet AB 1893 maximum and minimum density requirements (see below) without losing vesting.
Combined Projects – Potential Streamlined Ministerial Review
AB 1893 contemplates the combination of a Builder’s Remedy project with other state housing laws that provide for streamlined ministerial (i.e., no CEQA) project approval:
A Builder’s Remedy project may be combined with AB 2011, in which case it “shall be deemed to be in compliance with the residential density standards for purposes of complying with [AB 2011]” (Gov. Code § 65912.123). This means that if the Builder’s Remedy project otherwise qualifies for streamlined ministerial approval under AB 2011, non-compliance with AB 2011 minimum and maximum density requirements will be disregarded.
A Builder’s Remedy project may be combined with SB 35, in which case it “shall be deemed to be in compliance with the objective zoning standards, objective subdivision standards, and objective design review standards for purposes of complying with [SB 35]” (Gov. Code § 65913.4(a)(5)). This means that if the Builder’s Remedy project otherwise qualifies for streamlined ministerial approval under SB 35, non-compliance with objective local standards will be disregarded. Please refer to our prior legal alertfor information about SB 35, which was recently amended by SB 423 (Wiener).
Reduced Affordability Requirements
AB 1893 modifies on-site affordability requirements for Builder’s Remedy projects as follows:
Reduces the affordability requirement for mixed-income Builder’s Remedy projects from 20% lower income to 13% lower income, 10% very low-income, or 7% extremely low-income (as each is defined).
Requires compliance with local affordable housing requirements that, as of January 1, 2024, required a greater percentage of affordable units or a deeper level of affordability, unless compliance would render the project infeasible – pursuant to written findings by the local agency supported by a preponderance of evidence. This creates a high threshold for the local agency and if a “reasonable person” could find otherwise, “the project shall not be required to comply with that requirement.”
Caps the local affordable housing requirement, if any, to a maximum of 20% and where 20% is required, the required income level cannot be deeper than lower income.
Eliminates the affordability requirement for Builder’s Remedy projects consisting of 10 units or fewer (excluding any density bonus units) if the project site is smaller than one acre and the project proposes at least 10 dwelling units per acre.
Requires the affordable units to be affordable for 45 years (rental) or 55 years (ownership) and have a comparable bedroom and bathroom count as the market rate units.
Mixed-Use Projects
AB 1893 allows for a wider variety of mixed-use housing development projects:
Recall that under prior law, at least two-thirds of the project square footage must be designated for residential use to qualify as a “housing development project” under the HAA. That requirement has been reduced to 50% for projects proposing at least 500 net new residential units, so long as no portion of the project would be designated for use as a hotel, motel, bed and breakfast inn, or other transient lodging (except for a residential hotel, as defined in Health and Safety Code § 50519) (collectively, “Transient Lodging”).
That requirement has also been reduced to 50% for qualifying projects involving the demolition of existing non-residential use(s) on the site, as specified. Transient Lodging would also be prohibited under that scenario.
Recall that the HAA definition for a “housing development project” is cross-referenced in AB 2011, so these amendments will also benefit mixed-use AB 2011 projects.
Maximum Density
AB 1893 newly imposes the greater of the following density maximums for Builder’s Remedy projects — prior to any density bonus under the State Density Bonus Law:
50% greater than the minimum density deemed appropriate to accommodate housing for the local jurisdiction pursuant to Gov. Code § 65583.2(c)(3)(B) (e.g., 30 dwelling units per acre in a metropolitan jurisdiction, which translates to 45 dwelling units per acre).
Three times the density allowed by the general plan, zoning ordinance, or state law (whichever is greater).
The density specified for the project site in the Housing Element.
35 additional units per acre if the project site is within one-half mile of a “major transit stop” or is a “very low vehicle travel area” or a “high or highest resource census tract” (as each is defined).
Minimum Density
AB 1893 newly imposes the following density minimums for Builder’s Remedy projects:
On sites that have a minimum density requirement and are located within ½ mile of a “commuter rail station” or a “heavy rail station” (as each is defined), the residential density of the project must not be less than the minimum residential density required on the site.
On all other sites that have a minimum density requirement, the residential density of the project must not be less than the lower of: (i) the local agency’s minimum residential density; or (ii) 50% of the minimum residential density deemed appropriate to accommodate housing for the jurisdiction, as specified in Gov. Code § 65583.2(c)(3)(B) (e.g., 30 dwelling units per acre in a metropolitan jurisdiction, which translates to 15 dwelling units per acre).
Density Bonus Projects
AB 1893 includes provisions that pertain to Builder’s Remedy projects that also utilize the State Density Bonus Law:
A Builder’s Remedy project that is also a density bonus project will qualify for two additional incentives/concessions.
The local agency must grant a density bonus based on the number of dwelling units “proposed and allowable” under the Builder’s Remedy (see above).
The State Density Bonus Law does not specifically address extremely low-income units, which may be provided to satisfy AB 1893 affordability requirements (see above). Accordingly, AB 1893 provides that: (i) all on-site affordable units (including extremely low-income units) must be counted as affordable units in determining whether the project qualifies for a density bonus and; (ii) projects with extremely low-income units will be eligible for the same density bonus benefits provided to a project that dedicates three percentage points more units to very low-income households.
Industrial Use Proximity Prohibition
AB 1893 newly prohibits Builder’s Remedy projects on a project site that abuts a site where more than one-third of the square footage on the site has been used within the past three years by a “heavy industrial use” or a “Title V industrial use” (as each is defined in Gov. Code § 65913.16). Notably, this prohibition does not apply to the project site itself.
Local Requirements
AB 1893 specifically authorizes a local agency to require a Builder’s Remedy project to comply with local objective, quantifiable, written development standards, conditions, and policies (collectively, Local Requirements), subject to the following limitations:
Local Requirements must not render the project infeasible, and the local agency will bear the burden of proof in making that finding.
Local Requirements must not involve “personal or subjective judgement by a public official and [must be] uniformly verifiable by reference to an external and uniform benchmark or criterion….”
Local Requirements must be based on the general plan designation and zoning classification that allow the density and unit type “proposed by the applicant,” which is defined to mean “the plans and designs as submitted by the applicant, including, but not limited to, density, unit size, unit type, site plan, building massing, floor area ratio, amenity areas, open space, parking, and ancillary commercial uses.”
Local Requirements may be modified via incentives/concessions, waivers/reductions of development standards and/or reduced parking ratios authorized under the State Density Bonus Law.
The local agency cannot “preclude” a Builder’s Remedy project that meets applicable Local Requirements, as modified pursuant to the State Density Bonus Law (where applicable), “from being constructed as proposed by the applicant.”
Local Agency Restrictions
AB 1893 provides that a qualifying Builder’s Remedy project:
Shall not require a general plan amendment, specific plan amendment, rezoning, or other legislative approval.
Shall not require any approval or permit not generally required of a project of the same type and density.
Shall be deemed consistent, compliant and in conformity with an applicable plan, program, policy, ordinance, standard, requirement, redevelopment plan and implementing instruments (or other similar provision) for all purposes and shall not be considered or treated as a nonconforming lot, use, or structure for any purposes.
Shall not be subject to any additional Local Requirements (e.g., increased fees) based on utilization of the Builder’s Remedy.
New Developer Protections
AB 1893 provides that disapproval of a qualifying housing development project (including but not limited to a qualifying Builder’s Remedy project) by a local agency also includes any instance where the local agency “[f]ails to cease a course of conduct undertaken for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of the proposed housing development project, that effectively disapproves the proposed housing development without taking final administrative action” if specified conditions are met (which pertain to notice by the applicant and findings made by the local agency if it disagrees).
Recall that a local agency cannot disapprove a qualifying housing development project unless it makes specified findings based on a preponderance of the evidence in the record. (Gov. Code § 65589.5(d).) Therefore, this new provision would make it easier for project sponsors to prove that a local agency stalling for the purpose of suspending a disfavored housing development project has violated the HAA.
See AB 1893 (Gov. Code § 65589.5(h)(6)) for additional grounds which constitute disapproval of a housing development project under the HAA, which includes amendments under AB 1413 (Ting).
IMPLICATIONS
AB 1893 is an attempt to modernize the Builder’s Remedy by providing clarity to developers, local jurisdictions, and courts to avoid the “legal limbo” described by Attorney General Rob Bonta. As part of that compromise, specified requirements will be imposed on Builder’s Remedy projects, including a new “cap” on residential density where no codified limit currently exists. In return, the clarifications made by AB 1893 and the reduced affordability requirement for mixed-income projects could help prompt additional Builder’s Remedy projects in jurisdictions that have failed to comply with State Housing Element Law.
There are still opportunities to utilize the Builder’s Remedy. According to HCD, as of the date of this article, over 100 local jurisdictions are still out of compliance with State Housing Element Law and subject to the Builder’s Remedy. Furthermore, local jurisdictions with a certified Housing Element could become subject to the Builder’s Remedy in the future if rezoning required pursuant to the Housing Element’s schedule of actions is not completed by the applicable deadline. Under that scenario, HCD may seek to revoke Housing Element certification. That deadline has already passed for many jurisdictions but for others (where the Housing Element was timely certified) we expect to see HCD enforcement activity in early 2026 (three years after the applicable Housing Element certification date) pursuant to Gov. Code § 65583(c)(1)(A).
COMPANION BILL – AB 1886
AB 1886 (Alvarez) became effective on January 1, 2025 and will also help facilitate Builder’s Remedy projects by making the following clarifying amendments to existing law:
A local jurisdiction cannot “self-certify” its Housing Element. AB 1886 ratifies a prior HCD determination, which provides that HCD will consider an “adopted” Housing Element to be an initial draft because “a jurisdiction does not have the authority to determine that its adopted element is in substantial compliance but may provide reasoning why HCD should make a finding of substantial compliance.”
A Housing Element will be deemed substantially compliant with State Housing Element Law when: (i) the Housing Element has been adopted by the local jurisdiction and; (ii) the local jurisdiction has received an affirmative determination of substantial compliance from HCD or a court of competent jurisdiction.
Housing Element compliance status is determined at the time the SB 330 preliminary application (pursuant to Gov. Code § 65941.1) is submitted for the Builder’s Remedy project, which is consistent with HCD’s prior determination that the Builder’s Remedy is vested on that filing date. If a SB 330 preliminary application is not submitted, then the compliance status will be determined when a complete (full) development application is filed for the Builder’s Remedy project (pursuant to Gov. Code § 65943).
Please see our prior legal alert for more information about the Builder’s Remedy lawsuit that appears to be the impetus for the clarifying amendments under AB 1886.
Supreme Court Empowers District Courts to Challenge FCC TCPA Interpretations
The Supreme Court issued a decision on June 20, 2025, in McLaughlin Chiropractic Associates, Inc. v. McKesson Corporation, which may fundamentally alter the landscape for businesses subject to the Telephone Consumer Protection Act (“TCPA”). In a 6–3 ruling, the Court held that district courts are not required to follow the Federal Communications Commission’s (“FCC”) interpretations of the TCPA in enforcement proceedings, unless Congress has expressly stated otherwise. This marks a significant departure from the longstanding practice in many jurisdictions, where district courts treated FCC orders as binding in TCPA litigation.
Background: The TCPA, the FCC, and the Hobbs Act
The TCPA is a federal statute that restricts certain telemarketing practices, including calls, texts, and faxes, and provides for statutory damages and class actions. Over the years, the FCC has issued a series of orders interpreting the TCPA’s provisions. Under the Hobbs Act, challenges to these FCC orders had to be brought in federal appellate courts within a short window after the order was issued. For years, this framework led many courts to conclude that district courts were bound by the FCC’s interpretations in subsequent enforcement actions, effectively preventing businesses from challenging the FCC’s reading of the law when sued for alleged TCPA violations.
The Supreme Court’s Reasoning
In its decision, the Supreme Court clarified that, absent an express statutory preclusion of judicial review, district courts in enforcement proceedings are not bound by an agency’s pre-enforcement statutory interpretation. Instead, courts must independently interpret the statute, giving appropriate respect to the agency’s views but not treating them as controlling. The Court emphasized that unless Congress has clearly stated that judicial review is precluded in enforcement proceedings, the default rule is that courts may review agency interpretations. The Hobbs Act, the Court found, does not contain such a preclusion.
The Court’s opinion explained that the Hobbs Act’s grant of “exclusive jurisdiction” to the courts of appeals to “determine the validity” of agency orders refers to pre-enforcement declaratory judgments, not to the process of determining liability in enforcement actions. When a district court disagrees with an agency’s statutory interpretation in an enforcement proceeding, it is not issuing a declaratory judgment on the validity of the agency’s order, but rather determining the correct interpretation of the statute for the case at hand.
Implications and Strategic Considerations Going Forward
For businesses that make calls or send text messages, this decision opens new avenues for defending against TCPA claims. Parties are no longer locked into the FCC’s interpretation of the statute and can now argue in district court that the agency’s reading is incorrect, even if they did not challenge the FCC’s order within the Hobbs Act’s 60-day window. This change means that businesses have expanded defenses in TCPA litigation, as they can advocate for their own interpretation of the law rather than being bound by potentially unfavorable FCC guidance.
However, this new flexibility comes with increased uncertainty. With district courts now free to reach their own conclusions about the meaning of the TCPA, there is a greater likelihood of inconsistent rulings across different jurisdictions. This could lead to forum shopping, as plaintiffs and defendants seek out courts perceived as more favorable to their interpretation of the statute. Over time, divergent district court decisions may result in circuit splits, which could prompt further Supreme Court review and prolong uncertainty until key issues are resolved at the highest level.
The decision also suggests that compliance with FCC guidance is no longer a shield in court, and companies should not assume that following agency interpretations will be dispositive in litigation. Instead, businesses must be prepared for the possibility that courts will interpret the TCPA differently from the FCC, and should adjust their compliance and litigation strategies accordingly.
In light of this decision, businesses should continue to monitor both FCC guidance and judicial developments in the TCPA space. Compliance programs may need to be revisited to account for the possibility that courts will not defer to the FCC’s interpretations. In litigation, companies should be prepared to challenge FCC interpretations and defend their own reading of the statute. The legal landscape is now more fluid, and what was once settled by FCC order may now be open to judicial debate.
Conclusion
The Supreme Court’s ruling in McLaughlin Chiropractic Associates, Inc. v. McKesson Corporation represents a potentially significant shift in TCPA enforcement and litigation. Businesses that make calls or send text messages should review their compliance strategies and be prepared for a more dynamic and potentially unpredictable legal environment. It is advisable to consult with counsel to assess how this decision may affect your risk profile and defense options in current or future TCPA litigation.
California Battery Energy Storage Update
California has set ambitious clean energy standards, mandating that 100% of the state’s electricity be supplied by renewable and zero-carbon resources by 2045, with interim targets of 60% by 2030 and 90% by 2035. In order to meet these goals, California must be able to successfully store solar and wind energy generated only when the sun is shining, and the wind is blowing. In 2024, California made significant progress, bringing more than 7,000 megawatts of clean energy and over 4,000 megawatts of new battery storage online. Battery storage systems are key to California’s ability to meet energy demand, but the current installed battery storage capacity is over 20% of California’s peak demand. The state’s projected need for battery storage capacity is estimated at 52,000 megawatts by 2045.
To help achieve this ambitious target, since 2022, the California Energy Commission (CEC) was given temporary authority to permit certain renewable energy projects, including energy storage facilities capable of storing 200 megawatt-hours or more, through its Opt-In Certification Program originally enabled under AB 205. The Opt-In Certification Program is an optional permitting process through which project developers receive a permit from the CEC in lieu of any local permit and most, but not all, state permits. Since the enactment of the program, Allen Matkins has developed significant experience supporting Opt-In projects. As of this publication, there are eight Opt-In projects in the CEC’s queue.
The January 2025 fire that destroyed a portion of the 300-megawatt Moss Landing energy storage facility near Santa Cruz, California has brought increased attention to safety standards at storage facilities. This legislative session, three bills, AB 303, AB 434, and SB 283 were introduced, each proposing different standards for energy storage safety.
AB 303: BATTERY ENERGY SAFETY & ACCOUNTABILITY ACT
AB 303, introduced by Assemblymember Dawn Addis, proposes to remove energy storage facilities from the CEC’s Opt-In Certification Program and return land use authority back to local agencies. Additionally, AB 303 would establish restrictions for locations of new energy storage facilities. If passed, new facilities could not be constructed in high fire and high flood zones and a 3,200-foot setback from environmentally sensitive sites, such as homes, schools, hospitals, and prime agricultural land would be required. As drafted, AB 303 would not impact existing energy storage facilities but would seek to address safety concerns for new facilities across the state. At the beginning of June, AB 303 became a two-year bill by not passing through to the Senate by the applicable deadline.
AB 434
AB 434, introduced February 5th by Assemblymember Carl DeMaio, would similarly exclude energy storage facilities from the CEC’s Opt-In Certification Program. However, AB 434 would further prohibit, until January 1, 2028, a public agency from authorizing the construction of new energy storage facilities and would require the State Fire Marshal, on or before January 1, 2028, to adopt guidelines and minimum standards for the construction of energy storage facilities. Further, AB 434 would require public agencies authoring new energy storage facilities on or after January 1, 2028, to require the facility to meet either the standards adopted by the State Fire Marshal or more stringent guidelines as determined appropriate by the public agency. At the beginning of June, AB 343 became a two-year bill by not passing through to the Senate by the applicable deadline.
SB 283
SB 283, introduced February 5th by Senator John Laird, would require new energy storage facilities to meet the National Fire Protection Association (NFPA) 855 standards for battery storage safety and hazard mitigation. Further, prior to submitting an application for a new energy storage facility through either the CEC’s Opt-In Certification Program or a local approval process, developers would be required to engage and confer with local fire authorities to address facility design, assess potential risks, and integrate emergency response plans. As of this writing, SB 283 is being considered in the Assembly and will be heard before the Energy, Utilities and Communications and Local Government committees.
Legislature’s Report Captures California’s Permitting Reform Zeitgeist and Creates the Launchpad for More Than 20 New Housing Bills
In the summer of 2024, the State Assembly Select Committee on Permitting Reform began convening public hearings, interviews, and forums to understand how to reform land use permitting to address California’s ongoing “housing crisis and climate crisis.” This effort culminated in two parts: on March 4, 2025 the Select Committee released its Final Report on Permitting Reform, and on March 27, legislators operationalized the Final Report’s recommendations in a sweeping “Fast Track Housing package” of over 20 bills intended to make housing “more affordable by slashing red tape, removing uncertainty, and drastically diminishing the time it takes to get new housing approved and built.” We separately review these bills here.
The Final Report itself does not propose specific legislation. Instead, it reiterates that California needs to build more housing, renewable energy facilities, and climate-resilient infrastructure “at an unprecedented scale” to achieve its climate and housing goals. And to do so, the Final Report explains that California must transform its permitting processes from “time-consuming, opaque, confusing” endeavors into “timely, transparent, consistent, and outcome-oriented” sequences.
The Final Report unpacks four areas of permitting that underpin the housing and climate crises: Housing, Electricity, Water, and Transportation. Key recommendations for each topic are summarized below.
HOUSING
The Final Report lists five recommendations to improve permitting for housing development projects:
Eliminate uncertainty in the application process.
Minimize uncertainty in the entitlement process.
Create more consistency across permitting entities.
Focus CEQA review of housing developments on addressing potential environmental harms (versus nonenvironmental concerns often raised by project opponents).
Minimize uncertainty for post-entitlement permits.
Echoing the Final Report’s overarching themes, these recommendations focus on increasing certainty for housing developers throughout the permitting process. Stakeholders testifying about permitting challenges emphasized the need for clear, predictable local permitting requirements and decreased permitting timelines.
Regarding CEQA, the Final Report explains that “CEQA has proven highly susceptible to being leveraged to prevent development of projects for nonenvironmental reasons, such as dislike of development by those living near the proposed project, desire to lock in labor agreements by labor unions, desire for community benefits by community groups, and as a way for businesses to hurt their competitors. To facilitate the best environmental outcomes, and facilitate necessary projects, the environmental review of projects must be focused on those aspects of the project that are potentially harmful to the environment.”
ELECTRICITY
The Final Report identifies five opportunities to improve permitting for electrical infrastructure projects:
Improve implementation of Assembly Bill (AB) 205 (which allows the California Energy Commission, rather than a local agency, to permit a clean energy project).
Facilitate conversion of fallowed agricultural land to clean energy purposes.
Minimize unnecessary restrictions on battery storage.
Reduce barriers to reconductoring.
Facilitate alignment between local, state, and federal agencies.
Emphasizing the need to “deploy new electricity infrastructure at a scale and speed never before seen,” these recommendations focus on removing unnecessary or redundant barriers to constructing new energy facilities. As one stakeholder put it: “Meeting [California’s clean energy goals] is literally a moonshot. It requires a total of 70 gigawatts of utility-scale solar, 48 gigawatts of utility-scale battery storage by 2045 by the state’s own projections. And to succeed, we have to figure out how to build, on average, three times more than the fastest year we’ve ever built before.”
WATER
The Final Report identifies three opportunities to improve permitting for water storage, conveyance, and flood control projects:
Eliminating uncertainty in the application process.
Enhancing interagency coordination and consistency.
Creating distinct permitting pathways for drought resilience and flood risk reduction projects.
Stakeholders testifying about the challenges of permitting water infrastructure projects emphasized that long, complex, and multi-jurisdictional permitting processes can compound rather than surmount the urgent need to increase water capture and protect other critical infrastructure.
TRANSPORTATION
The Final Report notes that the transportation sector is California’s largest producer of greenhouse gas emissions and identifies three opportunities to improve permitting for transportation projects:
Increase consistency across local permitting entities.
Remove inefficiencies in repeat engagements.
Create distinct permitting pathways for important transit projects.
According to the Final Report, shifting trips from personal vehicles to alternative modes of transportation is an essential step in reducing greenhouse gases from California’s transportation sector. However, such projects often require approvals from multiple agencies, and that process is not always coordinated or consistent. Stakeholders testifying about these challenges recommended that the state legislature require local and state agencies to standardize the permitting process for transit projects.
IMPLEMENTING THE FINAL REPORT’S RECOMMENDATIONS
Legislators have sought to promptly implement the Final Report’s recommendations. The “Fast Track Housing package” unveiled on March 27 is based on the Final Report and includes over 20 bills aimed at reducing housing production delays. According to Assemblymember Buffy Wicks, who chaired the Select Committee on Permitting Reform, “The Fast Track Housing package is about making our systems work better: clearer rules, faster timelines, and fewer bureaucratic hoops.” Our full analysis of the new bills is available here.
Every Drop Counts: Urban Water Retailers and the Future of California Water Conservation
Beginning January 1, 2025, the “Making Conservation a California Way of Life” regulatory framework requires urban retail water suppliers — not individual households or businesses — to adopt a series of “urban water use objectives.” And beginning January 1, 2027, the regulations require urban retail water suppliers to annually demonstrate compliance with those objectives. The objectives are calculated based on indoor residential water use; outdoor residential water use; commercial, industrial and institutional irrigation use; and potable reuse. Implementation of the objectives includes setting and meeting specific targets for reducing water use per capita, improving system efficiency, and reporting progress to state regulators. Urban retail water suppliers are also required to implement water conservation programs, support the development of drought–resilient infrastructure, and encourage customers to adopt water-saving practices such as using “climate ready” landscapes.
The regulation, adopted in 2018 by the California State Water Resource Control Board, is part of the 2018 California Water Conservation Legislation (Senate Bill 606, Assembly Bill 1688) which is a comprehensive effort by the state to address ongoing challenges of water supply and environmental sustainability due to climate change. The framework targets inefficient urban water use and aims to reduce use by 500,000 acre-feet per year by 2040, consistent with the goals of the Water Supply Strategy, the California Water Plan, the Water Resilience Portfolio, and the Climate Adaptation Strategy which all recognize the importance of “Making Conservation a California Way of Life” in safeguarding water resources and preparing California communities for more extreme drought and precipitation conditions.
Under the regulation, most large urban retail water suppliers are required to comply with individualized water conservation targets. However, certain coastal cities with mild climates and historically lower per capita water usage are projected to meet their 2040 conservation goals without additional reductions. These cities include San Francisco, San Diego, San Luis Obispo, and Oceanside. In contrast, inland regions such as the community of Atwater in Central Valley, face stringent conservation requirements due to higher water use and climate conditions.
While the regulation seeks to secure California’s water future, the framework will present challenges for urban retail water suppliers including balancing the demands of indoor residential use; outdoor residential use; and commercial, industrial, and institutional irrigation use with supply amid drought conditions, aging infrastructure, and evolving climate patterns. During drought conditions, there may also be disparities in how water restrictions impact different communities, particularly those with fewer resources. Thus, ensuring equitable access to water-saving technologies and managing customer compliance can be complex.
This framework will also present challenges for individuals, developers, and businesses in various industries. Not only will these stakeholders have to adapt to more water-efficient practices, they may also be subject to new regulations on the use of land, water, and natural resources and face new costs or restrictions that affect project timelines, environmental assessments, or resource allocation.
The “Making Conservation a California Way of Life” regulation is a key initiative to ensure the preservation of the State’s natural resources, but they could bring significant challenges for urban retail water supplies and stakeholders. These sectors will need to adapt to new policies and practices that prioritize sustainability while balancing economic and operational demands.
Citizen Suit Enforcement Under the Industrial General Permit: How Businesses Can Avoid Substantial Costs Associated with Notice Letters
Each year, many California businesses receive letters from private entities, typically environmental nongovernmental organizations (Citizen Groups), alleging that those businesses’ facilities are in violation of applicable stormwater permits. The letters, commonly referred to as Notices of Violations and Intent to File Suit (Notice Letters), are authorized by the Clean Water Act’s citizen suit provision and often threaten litigation with steep civil monetary penalties up to $68,445 per violation, per day.
Resolving Notice Letters is costly and typically requires a business to retain legal counsel and an environmental consultant. Although most Notice Letters are resolved through settlement and do not result in extensive litigation, settlement payments can be substantial. Settlement agreements also often include terms for injunctive relief that obligate the owner/operator of a facility (or discharger) to make certain stormwater-related improvements, further adding to the costs associated with resolving Notice Letter allegations.
Receiving a Notice Letter that threatens legal action is a stressful experience for any business owner. This article provides an overview of California’s Clean Water Act permitting programs for industrial dischargers, including the Industrial General Permit (IGP), and offers practical tips on how dischargers subject to those permits can reduce the risk of receiving a Notice Letter. A copy of the IGP and its attachments is available here.
BACKGROUND
The Clean Water Act (CWA) prohibits discharges from point sources to waters of the United States unless the discharges are in compliance with a National Pollutant Discharge Elimination System (NPDES) permit. Section 402(p) of the CWA specifically regulates discharges of stormwater associated with industrial activity. Like most states, California has been delegated permitting authority under the CWA and, through the State Water Resources Control Board, develops its own NPDES permits for stormwater discharges associated with industrial activities, which are then implemented by one of California’s nine Regional Water Quality Control Boards.
California has a “general” industrial discharge permit — the IGP — which allows many prospective permittees to obtain NPDES coverage in a fairly consistent and uniform manner in exchange for agreeing to a similarly consistent and uniform set of permit conditions and requirements. The IGP applies to a wide variety of industries such as heavy manufacturing (paper mills, petroleum refineries, and chemical plants); mineral mining and oil and gas exploration and processing; and metal fabricators, scrapyards, and automobile junkyards. A comprehensive discussion of covered facilities is found in Attachment A to the IGP, available here.
For permittees that do not qualify or otherwise choose not to seek coverage under the IGP, California also issues site-specific industrial discharge permits. These site-specific permits are often utilized by large manufacturing facilities and/or dischargers with unusual or complex operations and ideally provide permit conditions tailored to the facility and operations at issue.
Under the IGP and virtually all site-specific industrial discharge permits, dischargers are required to take certain actions to protect waters of the United States from facility discharges, including the following:
Develop a Stormwater Pollution Prevention Plan (SWPPP) (a site-specific document that identifies potential sources of pollutants in stormwater and Best Management Practices (BMPs) to reduce any discharges associated with those pollutants).
Adequately train on-site personnel (and maintain training log documentation) to implement the BMPs identified in the SWPPP.
Collect and analyze stormwater samples (up to four times per year under the IGP) to confirm the effectiveness of the SWPPP and BMPs.
Finally, the IGP requires permittees to upload documentation to a publicly accessible database maintained by the SWRCB and known as the Stormwater Multiple Application and Report Tracking System (SMARTS), while site-specific permittees are typically required to upload documentation to a similar database known as the California Integrated Water Quality System (CIWQS).
BEST PRACTICES FOR AVOIDING A NOTICE LETTER
The best approach for dischargers to avoid a Notice Letter is to be proactive with compliance at their facilities, particularly with regard to submitting timely and correct documentation to SMARTS and/or CIWQS. Citizen groups seldom identify a facility with potential violations by visiting or personally observing that facility. Instead, citizen groups will often search SMARTS and CIWQS for signs that facilities are not in compliance with permit conditions.
Below are some of the most common reasons facilities are targeted by citizen groups:
Outdated SWPPPs: Numerous facilities operate under a SWPPP that is several years old and does not contain permit-required information or accurately reflect current facility operations.
Lack of Sampling: A failure to sample the requisite number of times, usually twice between July 1 and December 31 and twice between January 1 and June 30, may constitute a violation of the IGP. Of course, if a storm event does not have sufficient precipitation to produce a discharge, or occurs outside the facility’s operating hours, then no sampling is required. However, a prolonged lack of sampling in an area with documented storm events will draw the attention of citizen groups.
Overdue Ad Hoc Monitoring Reports and Annual Reports: Under the IGP, stormwater sampling results are required to be submitted to SMARTS within 30 days of receiving the lab report while the Annual Report must be submitted no later than July 15 following each reporting year. Facilities that submit required reports after these deadlines are attractive targets for citizen groups.
As the above points illustrate, many facilities become targets for citizen suits not based on actual discharge violations or egregious harm to the environment, but from the failure to properly and timely follow procedural requirements set forth in the applicable permit. Ensuring compliance with these procedural requirements is one of the most simple and cost-effective ways dischargers can reduce the risk of receiving a Notice Letter and becoming a target for citizen suit enforcement.
CONCLUSION
Clean Water Act permit requirements can be onerous and industrial dischargers, in particular, face significant scrutiny from citizen groups. Taking proactive steps to ensure compliance with the procedural requirements of these permits can be an efficient and highly effective method of dissuading citizen groups from issuing Notice Letters and bringing citizen suits. If a discharger is either unaware of its compliance status or is having difficulty ensuring compliance, it should consider retaining an outside environmental consultant to assist with this work.