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 . . .