March 24, 2009

California Attorney General Releases "Straightforward Answers to Some Frequently Asked Questions" Outlining Positions on Climate Change Analysis in General Plan Updates

Holland & Knight Alert
Jennifer L. Hernandez

The California Attorney General’s office released on March 17, 2009, a list of frequently asked questions and answers (FAQs) articulating its positions on a number of contentious issues relating to the treatment of climate change in general plan updates and California Environmental Quality Act (CEQA) environmental review documents. The FAQs show that the law enforcement agency will require local governments to perform detailed analysis of greenhouse gas (GHG) emissions and impacts in environmental impact reports (EIRs) and commit to concrete mitigation measures to limit future emissions.

General Plan Analysis of Climate Change

General plans are comprehensive, long range planning documents that cities and counties are required to adopt and periodically update under the Planning and Zoning Law; the adoption of the plan also must be reviewed under CEQA. Based on evolving laws and regulations, cities and counties are already struggling with how to incorporate a climate change analysis into these documents. Moreover, comment letters and lawsuits filed by the Attorney General’s office are pushing local governments to include more detailed analysis and stringent mitigation measures.

The FAQs establish important guidance regarding the process. They state that a city or county cannot rely on a conclusion that GHG-related emissions and impacts are speculative in order to avoid a significance finding under CEQA and preparation of an EIR. The document lists a number of technical guidance documents and tools that are either already available or in development, which local governments can use to estimate community-wide emissions attributable to a general plan update. The FAQs recommend use of:

  • the California Air Resources Board (CARB) protocols for estimating local government operations emissions and forthcoming protocols for estimating community-wide emissions
  • the Governor’s Office of Planning and Research Technical Advisory and recommended modeling tools
  • the California Air Pollution Control Officers Association White Paper
  • recommendations from the Attorney General’s website
CEQA Review of General Plan Updates

A challenging aspect in the preparation of an EIR discussion of climate change for a general plan update is determining the baseline for analysis: is the “area affected” the city or county itself, or the entire global environment that could be impacted by GHG emissions? The FAQs take an expansive view of the scope of the area that a general plan EIR must analyze for climate change impacts:

“The ‘area affected’ is both the atmosphere and every place that is affected by climate change, including not just the area immediately around the project, but the region and the State (and indeed the planet). The existing ‘physical conditions’ that we care about are the current atmospheric concentrations of GHGs and the existing climate that reflects those conditions.”

This perspective places few limitations on the analysis, suggesting that the agency will require analysis and mitigation of impacts associated with development of energy or raw materials that underlie development envisioned in the general plan.

The FAQs also reject the argument that compliance with the California Global Warming Solutions Act of 2006 (AB 32), alone, is sufficient to avoid a significance finding. Instead, the FAQs state that a general plan should ensure projects are on a trajectory to comply with Governor Schwarzenegger’s Executive Order S-3-05, requiring GHG emissions reductions of 80 percent below 1990 levels by 2050.1

The FAQs emphasize that an EIR’s mitigation measures in response to climate change must be concrete and enforceable. Climate Action Plans are a reasonable mitigation measure, according to the FAQs, which recommend that cities and counties adopt these plans at the same time they update general plans. Finally, the FAQs state that CEQA documents should consider the impacts of climate change on the general plan area itself, specifically mentioning erosion, sea level rise, flooding, increased fire risks and public health impacts.


The FAQs compile many of the positions taken by the Attorney General’s office in prior comment letters and lawsuits, and demonstrate that the agency will continue to push local governments for increased analysis and mitigation of GHG impacts, even beyond what is required by state agencies interpreting new law and executive orders.

Holland & Knight’s Environmental Team can provide assistance if you will be impacted by general plan updates that incorporate climate change analysis.

1 This position in the FAQs shows that the Attorney General is taking a stronger position than the Governor’s Office of Planning and Research, which released proposed amendments to the CEQA Guidelines in January 2009 that maintained agencies’ discretion to rely on compliance with AB 32 and do not specifically incorporate the S-03-05 goals.

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