January 23, 2009

California Governor’s Office of Planning and Research Releases California Environmental Quality Act Guideline Amendments

Holland & Knight Alert
Jennifer L. Hernandez

On January 8, 2009, the California Governor’s Office of Planning and Research (OPR) released the highly anticipated preliminary draft regulatory guidance for analysis and mitigation of greenhouse gas (GHG) emissions under the California Environmental Quality Act1 (CEQA) (Guidance). This Guidance was released pursuant to Section 21083.05 of CEQA(passed as Senate Bill (SB) 97 in 2007), which requires OPR to prepare guidelines for the mitigation of GHG emissions or the effect of GHG emissions, and submit guidelines to the California Resources Agency by July 1, 2009. The Resources Agency must then adopt guidelines by January 1, 2010.

OPR proposes amending several sections of the State CEQA Guidelines2 (Guidelines), including Appendix F, which describes the necessary analysis for energy conservation for inclusion in environmental impact reports (EIRs), and Appendix G, the Environmental Checklist Form, which is typically used in both the initial study process and in setting significance thresholds.

The Guidance itself highlights some of its key points. Importantly, OPR declined to set specific significance thresholds for GHG impacts, though it does recognize that the California Air Resources Board (CARB) is currently developing recommendations for setting thresholds of significance. In addition, OPR did not mandate a particular methodology for analyzing GHG impacts or identify specific mitigation requirements. Rather, the Guidance reflects OPR’s desire to grant lead agencies wide discretion in determining the approach taken to GHG analysis in their environmental review documents. The Guidance also places a strong emphasis on tiering off of adopted plans and programs rather than conducting new analysis for every project; in particular, the Guidance repeatedly incorporates concepts from recently enacted SB 375, which requires the adoption of sustainable community strategies and espouses a regional blueprint planning process to integrate land use and transportation planning, and refers several times to incorporation of a statewide GHG mitigation plan, by which OPR seems to envision various regulatory developments underway.

Also of note, the proposed amendments address the sensitive issue of mitigating a project’s impacts through the purchase of carbon offsets, which the Guidance allows only if the offsets are part of a mitigation plan committed to by the relevant agency. Finally, OPR proposed several changes to the Environmental Checklist Form, which could result in meaningful changes – some intentional, some perhaps not – to environmental analysis. For example, OPR proposes adding a disclaimer to the Environmental Checklist stating that it represents only a “sample form” that can be used for an initial study, but does not necessarily represent thresholds of significance. Although this note was presumably added to make clear that specific GHG thresholds of significance are not suggested, this language could be applied in other contexts to call into question the longstanding practice of using the standards in the Environmental Checklist as thresholds of significance in EIR analysis. In addition, OPR proposes amendments to the transportation/traffic section of Appendix G, including the elimination of the parking and level of service standards, which place a greater emphasis on the effects on vehicle miles traveled that a project may have.
For CEQA practitioners struggling to make sense out of the ever-evolving interplay between CEQA and climate change, the Guidance provides some helpful insight while also leaving many questions unanswered. As noted, the Guidance declines to adopt specific significance thresholds, stating instead that lead agencies should be granted discretion in setting their own thresholds. However, the Guidance repeatedly references the developing CARB significance threshold recommendations, suggesting that CARB’s proposal may effectively function as the state’s unofficial significance thresholds. In addition, the Guidance demonstrates a strong preference for tiering off of regional plans; interested parties should make sure to have a voice in the process of adopting such plans, especially SCSs adopted pursuant to SB 375. Finally, the proposed revisions to the Environmental Checklist evince a movement toward a holistic approach to climate change analysis, which includes consideration of impacts such as conversion of forest land and the interplay between climate change and transportation. These revisions suggest the need to consider climate change impacts throughout environmental review documents, not simply in an isolated context.

OPR has scheduled two public workshops to discuss the draft Guidance. The next one will be held on January 26, 2009, in Sacramento. OPR is accepting written comments on the Guidance until January 26. Within a “reasonable time” after the public workshops, OPR will submit draft CEQA Guidelines to the Resources Agency. The Resources Agency will then begin a formal rulemaking process, which will include a public comment period and public hearings. As mandated by CEQA section 21083.05(b), the rulemaking process must be completed by January 1, 2010.

1 Cal. Pub. Res. Code § 21000 et seq.

2 Cal. Code. Regs. Tit. 14, § 15000 et seq

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