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are also becoming a concern on the national scale, as the White House Council on Environmental Quality is completing draft guidance to federal agencies in considering greenhouse gas emissions under NEPA.
California court rules Wal-Mart's failure to consider greenhouse gas impact significant renders environmental impact report inadequate
Wal-Mart’s plans to build a “supercenter” near Joshua Tree National Park have been put on hold pending revisions of the Environmental Impact Report (EIR) submitted by the company. In a lawsuit filed by the Center for Biological Diversity (CBD), a California Superior Court Judge last week ruled that Wal-Mart’s EIR was inadequate because it failed to consider the greenhouse gases (GHGs) that the project will generate as a significant environmental impact. The ruling prevents Wal-Mart from proceeding with its plans unless and until the lead agency (the City Council of the Town of Yucca Valley, CA) revises the EIR to include a discussion of GHG impacts and mitigation measures.
The ruling is notable for several reasons:
First, it reflects a growing willingness of judges to consider the potential cumulative environmental impacts of building-related GHGs, even though such impacts are not localized and may have a time-lag of decades. As a result, courts are concluding that the potential for significant adverse impact on the environment must be addressed under laws, like CEQA, that require comprehensive environmental impact study by an agency with jurisdiction to approve project entitlements. The California Attorney General’s web site summarizes much of the political and regulatory activity in California about this movement.
Second, the ruling reflects increasingly active efforts by state attorneys general and public interest groups, such as the CBD to pressure local agencies to include mitigation of GHGs in the land-use permit process. In Ann Arbor, Michigan, for example, the mayor and city council were recently notified of a potential lawsuit by the Great Lakes Environmental Law Center and National Resources Defense Council (NRDC) challenging the city’s plans for an underground parking garage under the Michigan Environmental Policy Act (MEPA).
Third, it is further evidence that concerns about global climate change have become, and are becoming more and more mainstream in litigation.
Consultants, attorneys, and project sponsors should recognize that in more and more jurisdictions a proactive approach to GHG emissions and carbon footprint mitigation measures may be a critical factor in avoiding project delay. A project sponsor that is not prepared to address these issues may provide an attractive unifying issue for project opponents – and generate unnecessary bad publicity – even under current economic conditions.
It is ironic that Wal-Mart, which has been widely praised for being a leading proponent of the corporate sustainability movement, was tagged in this case for “ben[ding] over backwards to avoid incorporating cost-effective features like solar panels to reduce its carbon footprint,” according to the press release issued by the CBD. Project sponsors that are willing to address sustainability issues, including GHG impacts, at the outset of the entitlement process will have a greater likelihood of obtaining approvals without incurring the costs and delays associated with litigation.
Antelope Creek tar sands oil project challenged by environmental groups
The Sierra Club and the Indigenous Environmental Network have filed a complaint in a Utah federal court alleging that the proposed Antelope Creek tar sands oil project will disrupt wildlife, poison and dry up rivers, and harm human health with hazardous air pollutants – including greenhouse gas emissions. Specifically, the complaint states that the Department of the Interior and other defendants violated the National Environmental Policy Act (NEPA) and the Administrative Procedures Act (APA) by failing to prepare an Environmental Impact Statement (EIS) and failing to allow for public participation in the agency’s decision. The complaint alleges that the project anticipates the construction of 288 closely spaced new oil wells and will employ experimental thermal recovery methods. According to the Sierra Club, greenhouse gas emissions from tar sands production are three times those of conventional oil and gas production.
According to the complaint, approval of the Antelope Creek project was based on an Environmental Assessment (EA) conducted in 2003. The complaint states that NEPA requires the preparation of a more comprehensive EIS, and that an EA can only be relied upon if the proposed action will not significantly impact the environment. The plaintiffs allege that the EA prepared for the Antelope Creek project was not sufficient because, inter alia, it “failed to even attempt to characterize or address greenhouse gas emissions from the specific processes Petroglyph proposes to employ.”
An executive at Petroglyph Energy, the company proposing the Antelope Creek project, has issued a statement questioning the basis for the lawsuit. According to Petroglyph Energy executive vice president Paul Powell, “Petroglyph has not been approved for any permits to expand drilling in the area. No action has been initiated, and none is planned to take place. So, the lawsuit doesn’t make sense.” The Bureau of Land Management has not issued any permits to Petroglyph related to the project. According to Powell, “the proposed project was stopped when the permits were not approved.”
The Bureau of Land Management has jurisdiction over roughly 60% of the land at issue, while the rest of the land is administered under tribal authority. The Bureau of Indian Affairs is a named defendant in the complaint along with the Department of the Interior. Both are alleged to have violated NEPA by approving the project and issuing related permits.
Tar sands development has been largely concentrated in Canada to date, and is becoming one of the largest single emitters of greenhouse gases. Sierra Club estimates that tar sand production could increase greenhouse gases in the United States from 27 to 126 million tons by 2015.
Friends of Earth climate change lawsuit nearing settlement
*Updated 2/9/09 - added links to text of proposed settlement agreements.
A groundbreaking global warming lawsuit is now on the verge of settlement in the Northern District of California. The lawsuit, Friends of the Earth, Inc., et al. v. Spinelli (Case No. 3:02-cv-04106, sometimes referred to as Friends of the Earth v. Watson), was originally filed in 2002 against the Overseas Private Investment Corporation (“OPIC”) and the Export-Import Bank of the United States (“Ex-Im”). The Plaintiffs – Friends of the Earth, Inc. (a non-profit environmental advocacy organization), Greenpeace, Inc. and the cities of Boulder (CO), Oakland (CA), Arcata (CA) and Santa Monica (CA) – claimed that OPIC and Ex-Im – federal agencies providing loans, insurance or other assistance for fossil fuel projects around the globe – funded projects without complying with the requirements of the National Environmental Policy Act (“NEPA”).
Text of proposed agreements:
The case originally made headlines in August, 2005 when the Court determined that the Plaintiffs had the legal right to bring suit against OPIC and Ex-Im for funding projects in other areas of the world because United States cities could be affected by global warming effects from these projects. “This was the first court opinion that said greenhouse gas emissions in Chad and Saudi Arabia could have an effect on the environment of the United States,” said Sue Ellen Harrison, the assistant city attorney for plaintiff city Boulder, Colorado.
Refusing to dismiss the case on summary judgment, the court determined that standing existed because Plaintiffs had introduced evidence that: “(1) increased greenhouse gases are the major factor that caused global warming in the twentieth century, (2) global warming that has already occurred has had significant environmental consequences, (3) continued increases in greenhouse gas emissions would continue to increase global warming with consequent widespread environmental impacts, (4) and that these impacts have and will effect areas used and owned by Plaintiffs.”
Before commencing a project that could have environmental impacts, NEPA requires (1) a determination of whether the project will significantly affect the environment, and, if so, (2) the preparation of an Environmental Impact Statement (EIS) detailing the environmental effects and options for alternative actions. OPIC and Ex-Im had claimed they were not required to comply with NEPA requirements before funding projects.
Now, though the settlement agreement is subject to judicial approval, OPIC and Ex-Im have agreed to implement NEPA’s evaluation requirements for at least some of the projects the agencies fund. OPIC has agreed to subject “Category A” projects (those resulting in the emission of more than 100,000 tons of carbon dioxide) to federal regulations, report the greenhouse gas emissions of those projects and reduce the greenhouse gas emissions of those projects by 20 percent over the next ten years. Similar steps will be taken by Ex-Im’s officials to address the global warming effects of projects funded by the agency.
Similar lawsuits seeking to require consideration of greenhouse emissions before approving funding on projects have been filed in other countries, including Germany (Germanwatch v. German Federal Ministry of Economics and Labour) and Australia (including Australian NGOs v. Minister of Planning, in Melbourne Australia). Given the new administration’s tougher stance on global warming, it seems reasonable to assume that there will be an upsurge in these types of lawsuits in the coming years.
