California AG Throws Its Weight Behind Incorporating Climate Change Impacts Into Local Planning Decisions
June 6, 2007
Michael Wara - San Francisco
On April 13, the California Attorney General (Cal AG) filed its first climate change related challenge to a local agency’s approval of an environmental impact report (EIR). EIRs are California’s EIS equivalent – but with substantially more stringent requirements – and are required documents under the California Environmental Quality Act (CEQA) for all discretionary government actions. This watershed litigation is of importance to anyone with major projects planned in California and is also likely a harbinger of things to come in other states that both adopt laws similar to California’s “Global Warming Solutions Act” (AB 32) and have a state level NEPA statute.
The Cal AG’s complaint is similar to but also differs in important respects from those filed so far by Center for Biological Diversity (CBD) and the Natural Resources Defense Council (NRDC) contesting EIR approvals on climate change grounds. Probably the most important aspect of this petition is that it contests an update to a county general plan rather than certification of an EIR for a housing development, as had the earlier CBD and NRDC cases. The Cal AG apparently wants to address climate change at a more programmatic level than have the environmental organizations. This is consistent with the AG’s other CEQA comment letters that focus on climate change, both of which were submitted for updates to major transportation planning documents.
As in its comment letters, and similar to the environmental group’s lawsuits, the AG complaint emphasizes both the need and technical ability to calculate project emissions, even when the project is the 30-year growth plan for San Bernardino County, one of the most rapidly growing regions in California. The AG takes the position in the complaint that, at least at the scale of a general plan, project level impacts from greenhouse gas emissions are significant and need to be addressed. The complaint alleges that San Bernardino County failed to adopt feasible mitigation measures and that those that were adopted were actually project components, because they were required by current state law and regulation. Cal AG argues in a similar fashion that the consideration of cumulative impacts and the finding of overriding considerations are inadequate, the former because impacts are not disclosed and the latter because feasible mitigation measures are not adopted.
The Cal AG frequently references the state goals under AB 32 and alleges inconsistency with these. This suggests that, at least from the Cal AG perspective, satisfaction of these goals (the goals imply an approximately 29 percent cut below business as usual in 2020) should be an objective for project EIRs, at least at the regional scale. Important unresolved questions for counties and other regional agencies attempting to update their planning documents and probably for large development projects is which emissions are they responsible for and which are safely left under California Air Resource Board (CARB) authority? At this point there is no clarity on this issue but the Cal AG letter suggests that until CARB completes its AB 32 rulemaking, major projects are likely to be held responsible for considering all emissions sources for project approvals.
What has become clear is that in California, major development projects and planning efforts that fail to address climate change do so at their own peril. While standards or guidance for adequate discussion and mitigation of climate impacts has yet to be developed, moving forward, project emissions should be quantified and major developers will need to look more closely at greenhouse gas reducing options for project design.
For more information, e-mail Michael Wara at
michael.wara@hklaw.com or by calling toll free, 1-888-688-8500.