August 22, 2008

California Court Rules Environmental Impact Reports Must Address Climate Change

Holland & Knight Alert
Chelsea Maclean

On August 6, 2008, a Riverside County Superior Court held that the Environmental Impact Report (EIR) for a controversial luxury resort was inadequate for failing to analyze the project’s greenhouse gas (GHG) emissions in Center for Biological Diversity v. City of Desert Hot Springs (Case No. RIC464585). The lawsuit is one of a series of court challenges brought by the Center for Biological Diversity and the Sierra Club (collectively, CBD) to require analysis of GHG emissions from new development through the California Environmental Quality Act (CEQA). With this holding, the court provided the latest indication that global warming must be addressed in EIRs.

The Project: Large Development With No GHG Emissions Analysis
The project proposed more than 2,600 homes, over 1 million square feet of commercial space, a 400-room hotel, an amphitheater and two golf courses on open space in the northwest Coachella Valley. CBD alleged that the City of Desert Hot Springs (City) failed to conduct any analysis of the project’s effect upon GHG emissions or global warming in the project EIR.

The City: Regulatory Guidance Lacking

The City contended that such analysis was not required because it would be speculative. It argued that neither the Air Resources Board, the Environmental Protection Agency nor any other regulatory agency has provided guidance or developed the necessary analytic tools or methodology for conducting such analysis.

The Court: No “Meaningful Attempt” Was Made
The court acknowledged the lack of regulatory guidance1 but held that only if the City had made a meaningful attempt to analyze the project’s effects upon GHG or global warming could it have concluded that such analysis was speculative. The City failed to make a meaningful attempt to evaluate GHG emissions and therefore did not proceed as required by law (citing Berkeley Keep Jets Over the Bay Committee v. Board of Port Commissions (2001) 91 Cal.App.4th 1344, 1370-71 (citing CEQA Guidelines §15145, the Berkeley Jets court held, “[i]f, after thorough investigation, a lead agency finds that a particular impact is too speculative for evaluation, the agency should note its conclusion and terminate discussion of the impact.”)).
Additionally, the court cited the City’s separate and contrary assertion that the proposed project would actually have a “beneficial impact on CO2 emissions.” This assertion was based upon an assumption that houses currently occupied by those who move into the project would remain unoccupied thereafter. The court rejected this argument as unsupported and additionally noted that the argument did not address the increased activity and emissions from the commercial space, hotel, amphitheatre and golf courses.

The Court: Cites to State and Federal Efforts to Combat Global Warming
Finally, in rejecting the City’s arguments, the court cited the efforts of the California Legislature and Governor Schwarzenegger to combat global warming in AB 32, adopted in 2006, which requires that statewide GHG emissions be reduced to 1990 levels by the year 2020, and SB 97, adopted in 2007, which directs the Governor’s Office of Planning and Research to prepare guidelines for mitigating GHG emissions (specifically in the context of CEQA analysis). The court also noted a Ninth Circuit case, applying CEQA’s analogous federal law, NEPA, which held that the cumulative impact of GHG emissions is “precisely the kind of cumulative impact analysis that NEPA requires agencies to conduct.” (Center for Biological Diversity v. National Highway Traffic Safety Administration (9th Cir. 2007) 508 F. 3d 508, 550).

In light of the requirements of the CEQA Guidelines, state legislation and Ninth Circuit decision, the court split from its earlier decisions,2 and concurred with CBD’s contention that the City violated CEQA by failing to make a meaningful attempt to analyze the effect of the project on global warming.3
To date, trial courts in California have not taken a consistent approach to GHG analysis in EIRs.4 While this Riverside County Superior Court case is binding only upon cases in the same jurisdiction, the decision – along with the June 19, 2008, OPR Technical Advisory – adds to the growing body of authorities requiring climate change analysis in EIRs.

1 Note that the Governor’s Office of Planning and Research released a Technical Advisory on June 19, 2008, explaining how GHG and climate change impacts and mitigation measures should be addressed in EIRs (“OPR Technical Advisory”). However, that guidance was not available during the City’s EIR process or the court’s briefing period. 

2 A January 29, 2008, Riverside Superior Court decision, Highland Springs v. City of Banning (Case No. RIC460950), ruled that CEQA did not require the City of Banning to consider the global warming impacts of a project to develop 1,453 housing units with a school site and other amenities. A March 9, 2008, Riverside Superior Court decision, Center for Biological Diversity v. City of Perris (Case No. RIC477632), also upheld the City of Perris’ conclusion that analysis of climate change could be terminated as speculative. In doing so, the court relied on extensive analysis provided by the City to support the conclusion that it would be impossible to meaningfully evaluate the project’s impact on global climate change. 

3 Additionally, the court held that: (1) the geographic scope of the cumulative impacts analysis was arbitrary; (2) the EIR adequately evaluated the project’s effects on wildlife corridors (since the biological surveys conducted in connection with the EIR concluded that there were no wildlife corridors in the project area); (3) the EIR’s water supply analysis was adequate; and (4) recirculation of the EIR was not required after information concerning a species was provided to the City after the EIR had been circulated since extensive biological surveys previously conducted had concluded that the species was not present at the project site. 

4 Please see Footnote 2, above, for Riverside County Superior Court decisions. In addition, examples of other California Superior Court decisions include a July 23, 2008, Los Angeles Superior Court decision, Westfield v. City of Arcadia (Case No. BS108923), which held that no discussion of GHG emissions was required for an EIR analyzing an 800,000 sq. ft. commercial project. Despite the cases above, a July 15, 2008, Sacramento Superior Court decision, Environmental Council of Sacramento v. California Department of Transportation (Case No. 07CS00967), set aside an EIR prepared by CalTrans to add high-occupancy vehicle lanes to Highway 50 for its failure to analyze GHG emissions based on CalTrans’ argument that the absence of a significance threshold made it impossible to quantify GHG emissions or determine their significance.

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