We are pleased to report that the California Third District Court of Appeal recently granted our request to publish its decision in a California Environmental Quality Act (CEQA) case in which we were lead counsel. In a challenge to the certification of an environmental impact report (EIR), plaintiffs had argued that the EIR failed to include an adequate range of alternatives to the project. The Court rejected this argument.
The case is significant for two reasons. First, it provides precedent for a lead agency and project proponent to reject alternatives that are not feasible, thus avoiding the time and cost of analyzing an infeasible alternative for fear of a CEQA suit. Second, the Court upheld the rule of reason in its finding that the analysis of the project and the No Project alternative amounted to a reasonable range of alternatives. CEQA practitioners often advise clients to identify at least one alternative that is potentially feasible. Based on this determination, a record clearly showing there is no feasible project alternative can be upheld.
California Judicial Council Announces Expedited CEQA Litigation Court Rules for Qualifying Development Projects
From our colleague Wayne Rosenbaum:
As Juliet Cho blogged about in our California Environmental Law blog, California Governor Jerry Brown signed the Jobs and Economic Development through Environmental Leadership Act of 2011 (also known as AB 900) into law last September. The law aims to provide an incentive for applicants to move forward with their development projects by requiring that any challenge to a “leadership project” Environmental Impact Report (“EIR”) under the California Environmental Quality Act (“CEQA”) will be venued immediately in the Court of Appeal. The court will then have a maximum of 175 days to issue its decision on the challenged EIR. For a description of the qualifying criteria of a “leadership project” see Juliet’s blog post.
AB 900 also required the Judicial Council to adopt rules of court to implement the new law. Recently, the Council announced its proposed rules. These rules, which are to be adopted no later than July 1, 2012, impose a highly expedited briefing schedule and require payment of a special $100,000 fee to the Court to reimburse for costs related to the expedited handling of the case. Currently, at least one Solar PV project has applied for special handling under AB 900.
It remains a question whether the added costs for this expedited process are worth it for Solar PV and other developers. While no project has actually gone through the process as of this date, utility scale Solar PV projects should carefully consider the possible benefits. One benefit of immediate appellate review would be a dramatic reduction of the judicial review period by twelve to eighteen months. Having the Governor certify the project as an environmentally superior major job creator would also likely expedite the administrative review process before the land use agency.
On Friday, May 20, 2011, Judge Goldsmith of San Francisco Supreme Court issued a final order (PDF) with respect to a lawsuit challenging the environmental review of the Cap and Trade regulations created under California’s AB 32 Greenhouse Gas statute and the associated Scoping Plan. In its order, the Court enjoined the Cap and Trade portion of the Scoping Plan.
This revised final order is narrower than the draft order previously circulated in March. The order applies only to the Board Regulation O8-47 and Executive Order G-09-001 (approving the climate change scoping plan) as they relate to Cap and Trade; and the Cap and Trade regulations themselves Regulation 10-42. The Executive order enjoins the California Air Resources Board (CARB) from:
“[e]ngaging in any cap and trade-related Project activity that could result in an adverse change to the physical environment until ARB has comes into complete compliance with ARB’s obligations under its certified regulatory program and CEQA, consistent with the Court’s Order. This includes any further rulemaking and implementation of cap and trade especially but not limited to any action in furtherance of California Cap and Trade Program Resolution 10-42.”
Keep in mind, this lawsuit was filed challenging a CEQA type document which is procedural in nature. Thus, once CARB revises the environmental document in the manner required by the court and it is determined to be sufficient at the time the writ is returned, the project may go forward. Additionally, in the interim, those portions of AB 32 that are not related to Cap and Trade, such as mandatory reporting, are still in effect pursuant to the Implementation Schedule.
In the interim, it will be interesting to see whether various interests will attempt to make changes to the Cap and Trade program. The Sierra Club has already come out in favor of changes related to emissions levels and environmental justice issues.
Evaluating Climate Change Impacts under the California Environmental Quality Act: Center for Biological Diversity v. Town of Yucca Valley
Query this: the California legislature has passed the California Global Warming Solutions Act (AB 32) and Senate Bill 97, making it clear that the impact of a project’s greenhouse gas (GHG) emissions has to analyzed under the California Environmental Quality Act (CEQA). Your project is one GHG source among literally thousands of sources in California contributing to global climate change. There is no recognized CEQA threshold of significance for GHG emissions. We’re months away from having new CEQA Guidelines adopted under SB 97, but, in any case, the proposed draft amendments to the CEQA Guidelines do not establish a threshold of significance. And yet, you, as a project developer, need to analyze and reach a definitive (and defensible) conclusion on the cumulative impact of your project on climate change. What do you do?
Ever since it became clear that climate change impacts are fair game in a CEQA suit, developers (not to mention their investors, lawyers, and environmental consultants) have been clutching at any guidance out there on how to conduct a defensible environmental review of climate change impacts. Particularly in the last six months, several juicy regulatory guidance documents have been published to help us:
- California Air Resources Board: Preliminary Draft Staff Proposal on Recommended Approaches for Setting Interim Significance Thresholds for Greenhouse Gases under CEQA
- California Office of Planning and Research: Proposed Amendments to CEQA Guidelines
- California Air Pollution Control Officers Association: White Paper on CEQA and Climate Change
- South Coast Air Quality Management District: Interim CEQA GHG Significance Threshold for Stationary Sources
- San Joaquin Valley Air Pollution Control District: Draft Staff Report on the Climate Change Action Plan: Addressing GHGs under CEQA
- Association of Environmental Professions: Alternative Approaches to Analyzing GHG Emissions and Global Climate Change in CEQA Documents
There have also been a handful of court decisions, providing us a bit of insight into how to effectively treat climate change impacts under CEQA.
- Sierra Club v. City of Tulare (case no. 08-228122, Tulare County Sup. Ct., March 16, 2009)
- Center for Biological Diversity v. City of Desert Hot Springs (case no. RIC464585, Riverside Sup. Ct., Aug. 6, 2008)
- Environmental Council of Sacramento v. California Department of Transportation (case no. 07CS00967, Sacramento Sup. Ct., July 15, 2008)
- Center for Biological Diversity v. County of San Bernardino (case no. BCV09950, San Bernardino Sup. Ct., April 11, 2008)
- Murrietans for Smart Growth v. City of Murrieta (case no. RIC463320, Riverside Sup. Ct., Nov. 30, 2007)
Recently, San Bernardino Superior Court issued a ruling in Center for Biological Diversity v. Town of Yucca Valley (case no. CIVBS 800607 and 810232, May 14, 2009), with potentially important implications for handling in an environmental impact report (EIR) the devilishly tricky analysis of a project’s cumulative impact on climate change.
While definitive agency guidance and regulations are being developed, EIR drafters have been left wondering, how does one incorporate enough mitigation to be able to conclude that a project will not have a significant cumulative impact on climate change? Many projects have relied on incorporating recommended GHG emission reduction measures from the California Attorney General’s Office and the California Climate Action Taskforce as mitigation for GHG emission impacts, and even to conclude that a project will not a significant cumulative impact on climate change.
The Center for Biological Diversity v. Town of Yucca Valley case addresses the Town's reliance on the Climate Action Taskforce (CAT) GHG emissions reduction measures to find that a proposed Wal-Mart Supercenter would have a less than significant impact on global climate change. Judge Plotkin’s minute order, adopting his tentative ruling in the case, does not go into detail on how to handle a climate change cumulative impact analysis. What can we gleam from this concise opinion? Reliance on the CAT recommendations for emission reductions, to conclude that a project’s cumulative global climate change impact is less than significant, does not violate CEQA Guidelines § 15064(h)(3). However, the Town of Yucca Valley was nevertheless ordered by the Judge to revise the EIR’s cumulative global climate change analysis. In sum, the Town’s findings that the project complied with all applicable CAT strategies for emission reductions was not supported by substantial evidence. In addition, in discussing the project’s cumulative impact, the EIR ignored the scientific and factual analysis by the California Air Pollution Control Officer Association regarding attainment of California’s GHG emission targets. The EIR also failed to consider the entire GHG emissions output for the project.
All of our questions on CEQA and GHG emission won't be answered until there is much more local and state agency direction, and perhaps additional judicial guidance. So stay tuned . . .