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.
