California requires greenhouse gas emissions to be part of environmental impact calculus
Greenhouse gas emissions are officially factors to be considered in determining the environmental impact of local projects in California. On December 30, 2009, the California Natural Resources Agency adopted amended guidelines to aid public agencies and developers in complying with the California Environmental Quality Act (CEQA). The guidelines expressly provide that greenhouse gas emissions are included in the environmental impact calculus under CEQA.
CEQA is the California equivalent to the federal National Environmental Policy Act (NEPA). Like NEPA, CEQA requires state and local agencies to conduct environmental reviews before undertaking certain projects. However, CEQA has unique procedural and substantive requirements. The new guidelines are therefore essential to ensuring that state and local agencies are familiar with the state requirements.
The California legislature began the path to including greenhouse gas emissions in CEQA after passing the Global Warming Solutions Act of 2006 (AB 32). AB 32, inter alia, mandates a reduction in greenhouse gas emissions by 2020. Soon after the passage of AB 32, many lawsuits against public agencies and developers arose based on greenhouse gas emissions issues. In response, the California legislature adopted SB 97, which required the CRA to amend the guidelines to aid public agencies and developers in complying with AB 32. After the submission of amendments, the CRA had until January 1, 2010 to adopt the new guidelines. Accordingly, the new guidelines expressly provide for the consideration of greenhouse gas emissions. For example, one section describes how to determine the “significance” of potential greenhouse gas emissions.
The guidelines also describe how to create a plan for reducing greenhouse gas emissions. The “Environmental Checklist Form” for new projects now includes categories for the project’s effect on greenhouse gas emissions. In the CRA’s Final Statement of Reasons, the CRA emphasizes that the amended guidelines will not adversely affect businesses. The CRA asserts that the guidelines will provide greater certainty to CEQA analysis, thereby reducing the costs of environmental analyses and litigation.
Greenhouse gas emissions are also becoming a concern on the national scale, as the White House Council on Environmental Quality is completing draft guidance to federal agencies in considering greenhouse gas emissions under NEPA.
Lawsuit alleges California's cap-and-trade plan fails to minimize GHG emissions
A lawsuit by several environmental advocacy groups against the California Air Resources Board (CARB) (09-509562) continues to wend its way through the San Francisco Superior Court, with a scheduled hearing on the Environmental Defense Fund’s motion to file an intervening complaint being the next step in the litigation. The complaint alleges that the agency’s plan fails to minimize greenhouse gas emissions and protect vulnerable communities, which contravenes the Global Warming Solutions Act of 2006 (AB 32). The complaint also alleges violations of the California Environmental Quality Act (CEQA).
The lawsuit has garnered significant attention because of its focus on an emissions trading program proposed by the agency. The lawsuit could be viewed as foreshadowing similar challenges to federally implemented cap-and-trade programs. Even if cap-and-trade and similar programs win the approval of mainstream environmental activists, they can still face major legal challenges by smaller groups.
The Association of Irritated Residents and similar groups allege that CARB chose an emissions trading program on the basis of political feasibility, and ignored data suggesting such programs do not reduce emissions and do not improve air quality. They also claim that CARB has failed to meet procedural review and public participation standards required under California law.
CARB has strongly disputed the allegations: according to CARB Chairman Mary D. Nichols, “Our process for developing the Scoping Plan was unprecedented in its openness and transparency, including many opportunities for substantive comment and interaction as the plan went through the draft process and through the final adoption.” She also noted that “Ironically, some of the plaintiffs sit on ARB's Environmental Justice Advisory Committee (established by AB 32) and enjoyed unparalleled access to ARB staff and board members throughout the plan preparation.” Nichols expressed concern over an attack on the emissions trading program in its early stages, writing, “Now is the time to begin focusing on mechanisms to assure that the program is designed to assure that the communities that are most negatively impacted by industrial pollution receive a proportionately greater share of the benefits, including direct co-benefits from cleanup of existing sources.”
California OPR issues proposed amendments to CEQA guidelines regarding greenhouse gases
On April 13, 2009, the Governor’s Office of Planning and Research (“OPR”) submitted to the Secretary for Natural Resources its proposed amendments to the California Environmental Quality Act (“CEQA”) Guidelines for greenhouse gas emissions, as required by Senate Bill 97. These proposed CEQA Guideline amendments are intended to provide public agencies guidance when analyzing and mitigating the effects of greenhouse gas emissions in draft CEQA documents. The California Natural Resources Agency will conduct formal rulemaking in 2009, prior to certifying and adopting the amendments, but must certify and adopt the guidelines on or before January 1, 2010.
In her April 13, 2009 letter to Mike Chrisman, Secretary of National Resources, OPR Director, Cynthia Bryant described the proposed amendments as “relatively modest changes” to the CEQA Guidelines reflecting a “incremental approach” to change. The proposed amendments recommend changes to or additions of fourteen sections of the existing CEQA Guidelines, as well as updates to Appendices F (Energy Conservation) and G (Environmental Checklist Form).
The proposed CEQA amendments include new section 15064.4 designed to assist lead agencies in determining the significance of the impacts of greenhouse gas emissions. Section 15064.4 encourages lead agencies to quantify the greenhouse gas emissions of proposed projects where possible. Additionally, proposed section 15064.4 recommends lead agencies consider several other qualitative factors in determining significance. These factors include: (1) the extent to which the project may increase or reduce greenhouse gas emissions as compared to the existing environmental setting; (2) whether the project emissions exceed a threshold of significance that the lead agency determines applies to the project; and (3) the extent to which the project complies with regulations or requirements adopted to implement a statewide, regional, or local plan for the reduction or mitigation of greenhouse gas emissions.
Regarding thresholds of significance, section 15064.7 includes proposed new subsection (c), which is intended to clarify that in developing thresholds of significance, a lead agency may look to thresholds developed by other agencies, including the California Air Resources Board’s recommended CEQA Thresholds, or suggested by other experts, such as the California Air Pollution Control Officers Association, so long as the threshold is supported by substantial evidence.
A new subdivision (c) was added to Section 15126.4 to assist lead agencies in determining methods to mitigate greenhouse gas emissions. Because the impacts of greenhouse gas emissions are cumulative in nature, this new subdivision also emphasizes compliance with a plan among the list of potential mitigation measures in order to highlight the advantages of programmatic planning. Additionally, several proposed amendments identify plans that may provide some level of analysis of greenhouse gas emissions and suggest how those plans may be used in later CEQA analyses. These proposals are reflected in sections 15064(h)(3) (determining the significance of cumulative impacts); 15125 (environmental setting); 15130(b)(1)(B)(using a summary of projections in a cumulative impact analysis); 15150 (incorporation by reference); 15152 (tiering); and 15183 (projects consistent with community plan or zoning).
The Proposed Amendments to the CEQA Guidelines essentially formalize the recommendations presented by OPR Director Cynthia Bryant in April 2008, which included the following directives to lead agencies when assessing greenhouse gas emissions: (1) there is no standardized method, instead many possible approaches, but the approach is based on cumulative impact; (2) lead agencies are to estimate, model and calculate emissions, assess impact, and then mitigate where feasible; (3) the standard requires that lead agencies show their work and support their conclusions with substantial evidence; (4) they are encouraged to utilize the CEQA tiering provisions and to adopt programmatic mitigation strategies and prepare programmatic EIRS; and finally (5) lead agencies are to consider adopting a greenhouse gas reduction plan or policy.
Lawsuit against mega-dairy in California's Central Valley seeks to reduce greenhouse gases
On October 15, 2008, the Center for Biological Diversity and California Rural Legal Assistance filed a lawsuit challenging the failure to consider global warming impacts in conducting the environmental review of a mega-dairy in the Central Valley of California. This is the latest in a series of actions focusing on the environmental review process under the California Environmental Quality Act (CEQA), which requires public agencies to consider the environmental impacts of a proposed project before approving it. In the case of greenhouse gas emissions, several suits have claimed that CEQA requires identification of a project’s emissions, and if they are significant, may require the agency to impose mitigation measures to lower the project’s carbon footprint.
The new lawsuit asserts that the San Joaquin Valley Unified Air Pollution District failed to properly consider the global warming and human health impacts of a mega-dairy with 6,120 animals when it conducted its project review under CEQA. Mega-dairies produce large amounts of greenhouse gas emissions, including methane, ozone precursors, particulate pollution, hydrogen sulfide, and ammonia. The lawsuit contends that the mega-dairy project’s impacts were ignored or down-played.
New and expanding dairies, poultry houses, and other agricultural operations in the Central Valley have been targeted by environmental groups in recent years, once they lost their exempt status from Clean Air Act permitting requirements. Agencies reviewing permits and other approvals for such facilities are struggling to define which impacts are potentially “significant” impacts under CEQA. In Senate Bill 97, a companion bill to the California Global Warming Solutions Act (“AB 32”), the California legislature required the Office of Planning and Research (“OPR”) to develop draft CEQA guidelines “for the mitigation of greenhouse gas emissions or the effects of greenhouse gas emissions” by July 1, 2009 [link to Joanne Lichtman’s ClimateBlog posting on this], but no regulations are currently available to assist the public agencies in conducting their reviews. Air pollution agency officials belonging to the California Air Pollution Control Officers’ Association (“CAPCOA”) have published a non-binding white paper to assist local governments in conducting these reviews.
CEQA and Senate Bill 97 will require agencies to consider greenhouse gas emissions in evaluating projects
The role of the California Environmental Quality Act ("CEQA"), if any, in addressing climate change and greenhouse gas emissions ("GHGs") was the subject of debate in California after the passage in 2006 of the California Global Warming Solutions Act, often referred to as Assembly Bill 32 (“AB 32”). CEQA is a public disclosure law that requires public agencies to identify "significant environmental effects" of discretionary projects that they intend to carry out or approve, and to mitigate such significant effects when it is feasible to do so. AB 32 provided that GHG emissions can cause significant environmental effects, but did not address how public agencies in carrying out their duties pursuant to CEQA in approving projects should evaluate those emissions. For example, how does a public agency determine whether GHG emissions relating to a project meets a threshold of "significant impact"?
AB 32, in brief, provides that California is the source of substantial amounts of GHG emissions and establishes a state goal of reducing GHG emissions to 1990 levels by the year 2020 – a reduction of approximately 25% from predicted emission levels. (The law requires the California Air Resources Board to establish a program to track and report GHG emissions and to undertake numerous other regulatory actions and measures to ensure that the required reductions are implemented.)
In 2007, the California legislature passed a "companion" bill – Senate Bill 97 – to amend the CEQA statute to specifically establish that GHG emissions and their impacts are appropriate subjects for CEQA analysis. But the law does not address the evaluation and determination of "significance." The law simply directs the state's Office of Planning and Research ("OPR") to develop draft CEQA guidelines "for the mitigation of greenhouse gas emissions or the effects of greenhouse gas emissions" by July 1, 2009 and directs the state Resources Agency to certify and adopt the CEQA guidelines by January 1, 2010. Until that time, the OPR has issued a Technical Advisory (“Addressing Climate Change through CEQA Review”) to help guide agencies through the process by providing suggested standards on calculating GHG emissions, determining potential significance, and implementing mitigation measures, if necessary and feasible.
