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.
NGOs charged with playing larger role in climate regulation and climate litigation
Non-governmental organizations (“NGOs”) have historically taken an active role in the development and enforcement of environmental laws in the United States in an approach that some refer to as “regulation by litigation.” Given their concerns about global climate change, and the absence of federal legislative activity and enforcement, NGOs are calling for more unified and effective litigation tactics in an attempt to force action on climate policy.
This was the message of Peter Lehner, Executive Director of the Natural Resources Defense Council at the 2008 Gilbert & Sarah Kerlin Lecture on Environmental Law entitled "Environment, Law, and Nonprofits: How NGOs Shape Our Laws, Health, and Communities."
Mr. Lehner began by comparing the environmental arena to the financial industry. Mr. Lehner stated, "The role of NGOs in environmental law while not unique is indeed rare and missing from other areas of law, most notably the law of securities and finance." He asserted that the present-day financial crisis may not have occurred if NGOs were as active in the financial industry as they have been in the environmental realm.
Mr. Lehner included the Natural Resources Defense Counsel (“NRDC”) among NGOs that have been active players in pushing environmental legislation and enforcing environmental laws through litigation. An example of one recent bill sponsored by NRDC and signed by Governor Arnold Schwarzenegger of California just last week is Senate Bill 375: Redesigning Communities to Reduce Greenhouse Gases. The bill is aimed at reducing greenhouse gas emissions by forcing communities to develop (and redevelop) in a more compact way to reduce the level of automobile usage, particularly for commuting.
The NRDC and other environmental NGOs have repeatedly sued EPA and other federal agencies to either enforce environmental laws or to try to create environmental policy (or its judicially imposed equivalent). For example, as the Los Angeles Times reported:
Every time a new coal-fired power plant is proposed anywhere in the United States, a lawyer from the Sierra Club or an allied environmental group is assigned to stop it, by any bureaucratic or legal means necessary. . . .
The plant-by-plant strategy is part of a campaign by environmentalists to force the federal government to deal with climate change. The fights are scattered from Georgia to Wyoming, from Illinois to Texas, but the ultimate target is Washington . . .
One thing is clear from Mr. Lehner’s lecture – additional climate litigation initiated by NGOs is certain. Specifically, Mr. Lehner called for more lawsuits to fill the void of federal government inaction on climate policy and to enforce any laws or regulations that are promulgated. Mr. Lehner encouraged NGOs to focus on all legislative and regulatory enforcement tools and, in particular, the use of penalty provisions to incentivize environmental compliance. He also called for a shifting of the burden of proof in environmental matters to the alleged polluter and creation of what he called a presumption in favor of public health.
