Hanson Bridgett LLP

On March 19, 2020, California Governor Gavin Newsom and the Director of the California Department of Public Health ordered all Californians to stay home, “except as needed to maintain continuity of operations of the federal critical infrastructure sectors.” The order provides that the State Public Health Officer “[m]ay designate additional sectors as critical in order to protect the health and well-being of all Californians.” The order also provides that violation of its terms would subject the violator to penalties under Government Code section 8665, which includes the imposition of a fine, imprisonment, or both. The Governor’s Order supplements similar directives issued in many of the highly populated counties of the state.

The California Department of Public Health has provided further guidance on the state’s COVID-19 Response website, which clarifies that the Governor’s order excludes activities that are “needed to maintain the federal critical infrastructure sectors, critical government services, schools, childcare, and construction, including housing construction.” (Emphasis added.)

Governor Newsom is expected to issue an updated version of the order in the near future, which may provide further guidance regarding construction, including the continued applicability of the local county orders. While construction of housing and certain other key infrastructure projects may continue, it is unclear whether construction of commercial facilities may continue.

In the upcoming days and weeks, we expect state and federal authorities to provide further clarification regarding construction activities for federally-designated critical infrastructure. There are 16 critical infrastructure sectors, and are so designated because the federal government deems them so vital to the United States that their incapacitation would threaten the security and public welfare of the nation. Critical infrastructure sectors include the “Commercial Facilities Sector,” the “Critical Manufacturing Sector,” the “Transportation Systems Sector,” the “Energy Sector,” the “Government Facilities Sector,” and the “Water and Wastewater Systems Sector”:

  • “Commercial Facilities” includes office buildings and office parks, apartment buildings, multifamily towers and condominiums, mixed-use facilities, self-storage facilities, hotels, motels, conference centers, malls, shopping centers, and strip malls, as well as freestanding retail establishments.
  • “Critical Manufacturing” includes facilities that manufacture metals, machinery, electrical equipment, vehicles, ships, and trains.
  • “Critical Transportation” infrastructure includes roads and highways, rail, mass transit and light rail, and pipelines.
  • “Critical Energy” includes electricity, oil, and natural gas.  Solar, wind, and geothermal energy production is noted to support electricity infrastructure.
  • “Critical Government” infrastructure includes government-owned general-use office buildings and special-use military installations, embassies, courthouses, national laboratories, election infrastructure and structures that may house critical equipment, systems, networks, and functions.  This sector also includes K-12 schools and institutions of higher education and trade schools.
  • “Water and Wastewater Systems” include water sources, conveyance infrastructure (pipes or canals), reservoirs or lakes, treatment facilities, finished water storage facilities, distribution systems (pipes, tanks, pumps and valves), and monitoring systems.