Current Status of Climate Change Analysis Under CEQA
April 16, 2008
Madeline Stone- San Francisco
Given the rapidly evolving field of climate change, land use attorneys, project proponents, government officials, community groups, and others are grappling with the question of how to address climate change and greenhouse gasses in environmental review documents. Until recently, documents prepared pursuant to the California Environmental Quality Act (CEQA) were typically silent with regard to potential climate change impacts resulting from the project being analyzed and generally were not challenged based on the absence of this discussion. Now, however, with increasing attention focused on climate change, in particular following the U.S. Supreme Court’s April 2007 decision in Massachusetts v. EPA (__ US __; 127 S.Ct. 1438) that carbon dioxide is a Clean Air Act “air pollutant,” and the passage of California’s AB 32 – “Global Warming Solutions Act of 2006” – environmental review documents are beginning to include discussion about climate change. In addition, the California attorney general, and environmental and community groups are challenging the sufficiency of these documents based on either their failure to address climate change at all, or the alleged inadequacy of this discussion. Agencies tasked with developing and reviewing environmental review documents are also struggling to determine the appropriate approach to climate change discussion to include in these documents and, in some cases, are pushing project proponents to include extensive analysis.
In California, the attorney general in particular has been actively challenging CEQA environmental impact reports (EIRs) on climate change grounds. To date, the attorney general has submitted written comment letters alleging various climate change related flaws for at least 14 projects. While most of these are large-scale planning projects, such as regional transportation plans and county and city general plans, the attorney general has submitted comment letters on three major industrial projects and at least one large residential development project, as well as on a specific plan for a new community. Various community and environmental groups have also submitted comments alleging flaws in the analysis of climate change in environmental documents for numerous projects.
The comments from the attorney general and others have generally criticized documents for failing to analyze a project’s own greenhouse gas emissions and/or its cumulative contribution to climate change. Commenters also argue that such emissions will impact the state’s ability to achieve AB 32’s mandates to reduce greenhouse gas emissions in the state to 1990 levels by 2020 (although AB 32 itself is unrelated to CEQA). In some cases where the documents do include analysis of climate change, commenters question the failure to determine whether the impact is significant and/or the absence or alleged inadequacy of mitigation for any significant impact that the project may have.
Significant Implications for Future Climate Change Analysis
To date, two of the challenges undertaken by the attorney general have resulted in settlements, which may have significant implications for how future CEQA environmental review documents approach climate change analysis. On August 21, 2007, Center for Biological Diversity v. County of San Bernardino, which challenges an EIR prepared for a general plan update for the county, was settled with regard to the attorney general’s claims. Case Nos. SS 07000293, SS 0700329 (petitions for this case were filed on April 11 and 12, 2007; the most recent filing was Petitioner Center for Biological Diversity’s Statement of Issues on September 21, 2007; and a hearing is scheduled for January 25, 2008.) The settlement resulted in substantial commitments from the county to implement greenhouse gas reduction measures. The settlement commits the county to creating an inventory of greenhouse gas emission sources in the county, an inventory of greenhouse gas emissions levels in 1990 and projected levels in 2020, and a target for reduction of greenhouse gas emissions attributable to the county’s discretionary land use decisions and its own internal government operations.
The attorney general also recently settled with Conoco Phillips over Conoco Phillips’ proposed expansion of its refinery in Rodeo, California. Although the attorney general had not yet filed a claim against Conoco Phillips on climate change analysis grounds, through the administrative appeal process, the attorney general had clearly indicated its intent to do so. The settlement requires Conoco Phillips to fund a $7 million offset program to be administered by the Bay Area Air Quality Management District to compensate for the initial 500,000 tons/year of carbon dioxide that the project would create. In addition, Conoco Phillips must provide $200,000 for wetlands restoration and $2.8 million for a reforestation project. Conoco Phillips also agreed to identify greenhouse gas reduction opportunities at all of its California refineries, including its Rodeo facility, and surrender a permit for its Santa Maria coke purification plant.
These settlements will undoubtedly influence the approach taken toward greenhouse gas analysis in documents prepared pursuant to CEQA. In addition, at least three cases (in addition to Center for Biological Diversity v. County of San Bernardino, which was only settled with respect to the attorney general’s claims) are working their way through the California court system. In Highland Springs Conference and Training Center v. City of Banning, the Center for Biological Diversity (CBD) and several other environmental groups have challenged the EIR prepared for a 1,500 home development project proposed to be built in a remote, undeveloped area, claiming that the document failed to address the project’s impacts on climate change. Case Nos. RIC 460950, RIC 460967, RIC 461035, RIC 461069 (the most recent filing in this case was the Petitioners’ Combined Opening Brief filed on July 3, 2007). CBD and another environmental group have also challenged the EIR prepared for a proposed composting facility in San Bernardino County on the grounds that the climate change analysis was insufficient. Center for Biological Diversity v. County of San Bernardino, Case No. BS 09950 (petition for this case was filed on March 29, 2007), the most recent filing in this case was the Petitioner’s Statement of Damages filed on September 18, 2007, and a hearing is scheduled for January 28, 2007). And, most recently, in Center for Biological Resources v. City of Perris, CBD has challenged the EIR prepared for a 520,000 square foot commercial development, claiming that the EIR failed to analyze the project’s greenhouse gas impacts, or quantify its energy consumption and consider energy conservation measures. CBD also claims that the EIR is deficient for its failure to include mitigation measures to address the project’s climate change and energy consumption impacts.
None of the pending cases mentioned above have yet produced a court ruling. However, three cases involving challenges to supplemental environmental documentation that were prepared for projects already approved, and which did not include climate change analysis, have been decided at the trial court level. In American Canyon Community United for Responsible Growth v. City of American Canyon (Case No. 06CS01228, order entered on April 27, 2007) and NRDC v. Reclamation Board of Resources Agency of the State of California (Case No. 26-27462, order entered on May 21, 2007), the trial courts held that AB 32 in particular and climate change in general did not represent “significant new information” such that the supplemental documents needed to include discussion of the issue. In Santa Clarita Oak Conservancy v. City of Santa Clarita (Case No. BS 084677, order entered on August 15, 2007), the court held that the impact of climate change on water supply was too speculative to be analyzed in an EIR supplement prepared specifically to address water supply.
Concern About CEQA Challenges Delaying Important California Projects
Both the volume of comments on environmental review documents and the judicial challenges to them raise significant questions regarding climate change analysis in documents prepared pursuant to CEQA. Because regulations have not yet been developed to implement AB 32 or to provide guidance on how to include climate change analysis in environmental review documents, many fear that CEQA challenges alleging inadequate climate change analysis will delay implementation of important projects throughout California. In an effort to prevent such delays, a group of Republicans in the state Senate proposed amending CEQA to prohibit legal challenges to environmental review documents on grounds related to climate change and refused to vote for the state’s budget until the issue was resolved. On August 21, 2007, a compromise bill, SB 97, was passed as part of the overall budget agreement. The governor signed the budget on August 24, 2007, and SB 97 on August 28, 2007, (SB 97 will take effect on January 1, 2008). SB 97 amends CEQA to prohibit challenges to environmental review documents for specified transportation, port and flood control projects funded by state bonds based on failure to adequately analyze greenhouse gas emissions required to be reduced under AB 32. This prohibition will last until January 1, 2010. By the same date, the bill also requires the California Resources Agency to adopt guidelines for mitigation of greenhouse gas emissions pursuant to CEQA. However, this compromise bill leaves other projects throughout the state subject to CEQA challenges on climate change grounds and does not prevent any agency from voluntarily requiring analysis or mitigation of greenhouse gas emissions prior to the adoption of the new guidelines.
Climate Change Impacts Must Be Included in Environmental Reviews
Although this issue is rapidly evolving and definitive conclusions are difficult to make at this time, some lessons can be drawn from the developments discussed above. Ignoring climate change impacts in environmental review documents is no longer supportable. Documents should include discussions about the greenhouse gas emissions associated with a project and how these emissions relate to the larger problem of climate change. In addition, environmental review documents that do not make a determination regarding the significance of a project’s climate change impacts are increasingly likely to be challenged. Emboldened by the attorney general’s settlements with both the county of San Bernardino and Conoco Phillips, project opponents are also likely to push harder for commitments to mitigate a project’s greenhouse gas emissions. Although these settlements do not represent judicial precedent requiring mitigation of climate change impacts, they may serve as practical guides to what will be expected of project proponents, and will certainly lead to ongoing pressure from agencies and members of the public to mitigate greenhouse gas emissions through the CEQA process.
For more information, email Madeline Stone at madeline.stone@hklaw.com or call toll free, 1.888.688.8500.