A Review of Climate Change Decisions in California Trial Courts
As environmental and land use practitioners across California scramble to determine the appropriate approach to evaluating greenhouse gas (GHG) emissions under the California Environmental Quality Act (CEQA), a growing number of superior courts are issuing decisions on the need for and adequacy of GHG analysis in CEQA documents. These cases come at a time after the adoption of both Assembly Bill 32 (Chapter 488, Statutes of 2006), which requires that statewide GHG emissions be reduced to 1990 levels by the year 2020, and Senate Bill 97 (Chapter 185, Statutes of 2007), which directs the Governor’s Office of Planning and Research (OPR) to prepare and submit guidelines for the mitigation of GHG emissions and their effects, but before OPR, or any other state agency, has finalized guidance on exactly how to evaluate GHG emissions.1 While the superior court decisions are binding only upon those cases within the same jurisdiction, the decisions offer a glimpse into different agencies’ trial-and-error efforts at analysis across the state, particularly in the absence of any appellate decisions on these issues. Tracking the trends in courts is one way to try to predict what may become the industry-accepted and state-mandated approach to evaluating GHG emissions in years to come.
Supplemental environmental analysis of climate change impacts was not required in Napa County and Sacramento County superior court decisions.
The first batch of superior court cases came in 2007 and held that climate change is not required as supplemental analysis for a previously certified environmental impact report (EIR). The petitioners in American Canyon Community United for Responsible Growth et al. v. City of American Canyon et al. alleged that subsequent environmental analysis of a Wal-Mart Supercenter should have included analysis of the project’s GHG emissions and global warming impacts.2 Case No. 26-27462 (Napa County Superior Court, May 22, 2007; no appeal pending). The court upheld the city’s determination that AB 32 is not the type of “new information” requiring subsequent environmental review since it is not specific to the project.
The court in Natural Resources Defense Council et al. v. Reclamation Board of the Resources Agency of the State of California held that the concept of climate change and the impact it will have on hydrology and flooding is not “new information” that was not known at the time of the agency’s approval of fill and encroachment permits related to development of a large area of land within the Sacramento-San Joaquin Delta region. Case No. 06-CS 01228 (Sacramento County Superior Court, April 27, 2007; no appeal pending). It remains to be seen whether this holding will be repeated in other jurisdictions and in the face of projects with greater potential climate change impacts.
A range of decisions can be seen in the superior courts regarding the need for climate change analysis during initial environmental review. The courts are drifting towards an affirmative requirement for analysis and beginning to decide the adequacy of analysis conducted.
In the context of a project’s initial environmental review, a range in holdings and splits within the courts can be seen. The trend in the courts is that some form of climate change analysis is required in EIRs. A summary of all of the California superior court decisions that could be located follows.
Riverside County Superior Court
In the first ruling to affirmatively declare that a project was not required to analyze greenhouse gases, the court in Highland Springs v. City of Banning, Case No. RIC460950 (January 29, 2008) ruled that CEQA did not require the city to consider the GHG impacts of a project to develop 1,453 housing units with a school site and other amenities since “no law required the Banning City Council to consider global warming at the time it approved [the] project.” This case should be read with caution given the lack of regulatory guidance available at the time of the project approvals and the fact that the EIR was set aside on other grounds. This decision was appealed (Case No. E046071), but dismissed on procedural grounds on September 3, 2008.
In Center for Biological Diversity v. City of Perris, Case. No. RIC 477632, consolidated with Coalition for Honest Environmental Evaluation in Perris v. City of Perris, Case No. 477811 (May 9, 2008), the court upheld the city’s conclusion that analysis of a large commercial shopping center’s impact on climate change could be terminated as speculative.3 Notably, however, the court relied on the city’s extensive analysis of scientific literature and environmental studies to support the conclusion that it would be impossible to meaningfully evaluate the project’s impact on global climate change. This decision was appealed and is pending in the Fourth Appellate District, Division Two (Case No. E046237).
In Center for Biological Diversity v. City of Desert Hot Springs, Case No. RIC464585 (August 6, 2008; no appeal pending), the court held that the city violated CEQA by failing to make a meaningful attempt to analyze the effect of a controversial luxury resort project on global warming. In rejecting the city’s claim that analysis would be speculative without regulatory guidance, the court acknowledged the lack of such guidance, 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. Additionally, in holding that GHG analysis was required, the court cited the Legislature’s and governor’s efforts to combat global warming in AB 32 and SB 97, as well as a Ninth Circuit decision requiring cumulative climate change analysis under CEQA’s analogous federal law, the National Environmental Policy Act.4 The court’s reliance on the NEPA decision is consistent with a trend in which California courts rely on NEPA precedents when construing CEQA provisions, especially for new issues not yet applied in CEQA cases. Finally, the court rejected the city’s separate assertion that the project would actually have a “beneficial impact on CO2 emissions” as unsupported.
Sacramento County Superior Court
In Environmental Council of Sacramento v. California Department of Transportation, Case No. 07CS00967 (July 15, 2008; no appeal pending), California Department of Transportation (Caltrans) proposed to add high-occupancy vehicle lanes to Highway 50 and argued that the proposed project fit within newly enacted legislation exempting transportation projects from claims based on a failure to analyze the effects of GHG emissions. Public Res. Code § 21097(a). Based on strict statutory interpretation, the court concluded that the Legislature did not intend for the exemption to apply to Final EIRs certified before the effective date of the legislation. Since the proposed project’s Final EIR had been certified months before the effective date of the legislation, the court held that the project was not exempted from conducting GHG analysis. In evaluating the adequacy of Caltrans’ GHG emissions analysis, the court rejected the argument that absence of a significance threshold made it impossible to quantify GHG emissions or determine their significance and set aside the EIR.
Los Angeles County Superior Court
In Westfield v. City of Arcadia, Case No. BS108923 (July 23, 2008; no appeal pending), the court held that the quantification of carbon dioxide emissions expected from an 800,000 square foot commercial project constituted sufficient climate change analysis.5 In explaining why additional analysis was not required, the court provided the following rationale: (1) no currently accepted national wisdom on validity of climate change exists; (2) no climate change guidance from either the Air Resources Board or from the regional Air District is available;6 (3) the EIR was entitled to rely on a statement that climate change impacts from any single development project will be insignificant; (4) Public Resources Code Section 21097 (enacted as part of SB 97, discussed above) cannot be interpreted to imply that projects that do not involve transportation or flooding are required to analyze GHG emissions; and (5) cumulative climate change analysis is not appropriate since it is impossible to identify a practicable and reasonable group of other past, present and future projects as part of the cumulative impact analysis. This decision was unexpected and appears inconsistent with the decisions rendered in the same timeframe.
In Natural Resources Defense Council, Inc. v. South Coast Air Quality Management District, Case No. BS 110792 (July 29, 2008; no appeal pending), the court set aside the South Coast Air Quality Management District’s environmental analysis7 of rulemaking actions to access pollution credits known as the “Priority Reserve,” which were originally set aside for public projects such as hospitals and police stations, and to sell those credits to private developers and public utilities for construction of 11 natural gas-fired power plants as well as other potential projects in the future.8 The court noted that the rulemaking would have a certain and foreseeable effect on global warming. While the analysis discussed potential generation of carbon dioxide, the court held that it failed to fully quantify or analyze greenhouse gas effects and failed to consider how to mitigate them. This holding is notable in that it is the first to specify the steps of an adequate GHG emissions analysis and also implies that greenhouse gases other than carbon dioxide need to be analyzed, though it does not specify exactly which additional gases require analysis.
While some early decisions held that GHG analysis was not necessary in light of the lack of regulatory guidance, these holdings are unlikely to be repeated now that guidance from OPR has been released and further direction from OPR and the Air Resources Board is expected. Other decisions, such as those in Riverside, Sacramento and Los Angeles superior courts add to the growing body of authorities requiring climate change analysis in EIRs. What remains to be seen is how the courts will begin to consider the adequacy of GHG analysis once conducted and also how the appellate courts, whose decisions will be binding on all courts in the state, will deal with these same issues. As these cases emerge, the battleground will likely be over whether significance thresholds must be set by lead agencies before the state agencies do so, the appropriateness of project-specific and cumulative impact significance findings, and the adequacy of mitigation measures adopted to reduce GHG emissions.
1 Note that OPR released a Technical Guidance on June 19, 2008 explaining how GHG and climate change impacts and mitigation measures should be addressed in EIRs (OPR Technical Guidance). OPR is required to finalize guidance (which may or may not be consistent with the Technical Guidance) by July 1, 2009, for adoption by January 1, 2010. Public Res. Code §21083.05(a).
2 After an EIR is certified by a lead agency, supplemental analysis is later required when substantial changes are proposed to the project itself, substantial changes occur with respect to the circumstances under which the project is being undertaken, or new information which was not known and could not have been known at the time the EIR was certified as complete, becomes available. Ca. Pub. Res. Code § 21166; 14 Cal.
Code Regs. § 15162(a)(1).
3 The CEQA Guidelines provide that “[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.” 14 Cal. Code Regs. § 15145
4 Center for Biological Diversity v. National Highway Traffic Safety Administration (9th Cir. 2007) 508 F. 3d 508, 550, held that cumulative impact of GHG emissions is “precisely the kind of cumulative impact analysis that NEPA requires agencies to conduct.”
5 But note that the court identified an error in the carbon dioxide calculation and recommended, but did not require, that the city rectify the error while revising the EIR for other reasons.
6 OPR’s Technical Guidance was not available during the city’s EIR process or the court’s briefing period.
7 Note that a Programmatic Environmental Assessment was prepared under NEPA, but was reviewed by the court under the same standard as an EIR.
8 Under the Clean Air Act, the local governments that make up the South Coast Air Quality Management District can allow more pollution in one place only if they reduce soot and cancer-causing airborne particles somewhere else in the same region through a system of pollution credits.