Global Warming Becomes CEQA Issue

Like a blast of hot air from the Santa Ana winds of fall, the push to address global warming in environmental impact reports has come on suddenly and with surprising intensity.

Twelve months ago, only a handful of people were talking about global warming in the context of the California Environmental Quality Act (CEQA). However, the passage last year of AB 32 limiting greenhouse gas emissions, the filing of several lawsuits over project and plan environmental reviews, and an apparent interest by new Attorney General Jerry Brown have brought the issue to the forefront.

But while there is a movement to include global warming discussions in environmental impact reports and other CEQA documents, there is little guidance for planners and environmental consultants who have to prepare the documents. The Governor's Office of Planning and Research has had little to say on the subject, and there are no proposals at least not publicly available to amend the CEQA Guidelines or state law in a way that explains how global warming should be considered.

Conferences and workshops are buzzing, though, and the Association of Environmental Professionals (AEP) has just released a heavily reviewed "white paper" that provides some of the most extensive guidance to date.

"I really think the attorney general submitting comment letters on projects has raised the profile of this issue," said Barbara Schussman, an attorney with Bingham McCutchen in Walnut Creek. "Most land use lawyers are advising their clients to include global warming in their environmental documents."

In April, Brown's office sued San Bernardino County for failing to analyze and mitigate the effects on global warming caused by a general plan update. Brown's office has also started submitting comment letters on individual development projects including the 5,000-unit Yuba Highlands project (see CP&DR Local Watch, June 2007) and on regional transportation plans.

An attorney general's letter sent in May commenting on the EIR for San Joaquin County's regional transportation plan (RTP) says that governor's Executive Order S-3-05 (which recognized the need to limit global warming's impact on the state) and the passage of AB 32 (the California Global Warming Solutions Act of 2006) "inform agencies' obligations under CEQA." The construction and use of $6.6 billion worth of highway and road projects will result "in a significant cumulative contribution" to greenhouse gases, and, therefore, the San Joaquin Council of Governments must adopt "all feasible alternatives and mitigation measures to reduce the project's global warming impacts." The attorney general goes on to suggest that the COG spend more money on public transit, require energy-efficient building materials and plant additional trees.

The San Joaquin COG's response, which Schussman helped prepare, says that greenhouse gas emissions would actually be greater without the project because of increased traffic congestion. The attorney general's office, though, may use the San Joaquin RTP as a test case, much as it is using the San Bernardino general plan update.

The AEP white paper offers seven potential methodologies for dealing with global warming during environmental review, ranging from no analysis to a quantitative analysis combined with emission reduction strategies contained in a report by the governor's Climate Action Team. An earlier version of the white paper recommended a quantitative analysis in every instance, but that recommendation drew condemnation, especially from the building industry.

"We figured out that's not practical in a lot of instances," said AEP President Kent Norton, of Michael Brandman Associates' San Bernardino office. "We came up with kind of a shopping list instead. Every attorney in the world wanted to have their say."

Indeed, attorneys have begun cranking out memos and other documents in response to the AEP white paper and clients' questions. During a UCLA Extension conference earlier this year, attorney Michael Zischke of Cox, Castle & Nicholson offered four options for dealing with the issue:

Declare that AB 32 added nothing to CEQA requirements and ignore the matter;

Disclose that a project will generate greenhouse gas emissions but state that any impacts are too speculative to consider;

Address greenhouse gas emissions as a CEQA issue in an air quality discussion; or

Prepare a quantitative analysis and mitigations.

Zischke said he is ready to defend all four approaches, but he said the last alternative full analysis and mitigations is "far-fetched."

The California Building Industry Association (CBIA) favors Zischke's first alternative do nothing new. In a comment letter on the AEP's draft white paper, CBIA attorneys and lobbyists stated, "To date, no legal requirement exists, be it statute (AB 32), regulation, guideline or case law, that an analysis of climate change issues be undertaken within a CEQA document."

Besides, the CBIA argues, lead agencies lack scientific data to establish baseline emission standards. "[N]owhere in the scientific or analytical literature is there an established methodology for determining the impacts of either a land use plan or an individual project on global climate change and, in particular, for determining whether those impacts are significant," the CBIA letter to the AEP says.

On the other end of the spectrum are environmental groups, led by the Center for Biological Diversity and the Natural Resources Defense Council. Brian Nowicki, a global warming specialist for the CBD, pointed out that AB 32 commits California to doing everything feasible to reduce the effects of global warming, including cutting greenhouse gas emissions to 1990 levels by 2020. So it simply stands to reason that activities that generate greenhouse gas emissions such as road projects and auto-dependent urban growth must be analyzed under CEQA, and their impacts mitigated, he argued.

"We want a full inventory of the greenhouse gas increases due to development" Nowicki said of project and plan EIRs. The CBD has sued over the EIRs for the San Bernardino general plan and a housing project approved by the City of Banning.

The AEP does not pick sides but the white paper says that AB 32 "creates a compelling statutory basis" for addressing global climate change in CEQA compliance.

There have been only two court decisions so far, both by trial court judges in cases that might not be entirely representative.

In April, Sacramento County Superior Court Judge Patrick Marlette ruled against the Natural Resources Defense Council, which had sued the State Reclamation Board for not considering the impact of global warming on a project (rather than vice-versa). The NRDC argued that the state should have considered the impact that a rise in sea level would have before the agency granted levee improvement permits for the 11,000-unit River Islands project in the City of Lathrop (see CP&DR Local Watch, March 2003). Marlette, who called his decision "narrow," ruled that project detractors did not provide enough specific, new evidence to require the preparation of a supplemental EIR.

In May, a Napa County court reached a similar conclusion in a lawsuit concerning a new Wal-Mart store's contribution to global warming: detractors had not presented new information to require after-the-fact review of the EIR.

Thus far, however, no appellate courts have tackled a case and published an opinion, so there is no precedent in case law for practitioners to follow.

"I suspect a lot of this will be decided on a case-by-case basis," Schussman said.

Contacts:
Kent Norton, Association of Environmental Professionals, (909) 884-2255.
Barbara Schussman, Bingham McCutchen, (925) 975-5319.
Brian Nowicki, Center for Biological Diversity, (520) 623.5252.
AEP white paper: http://califaep.org/climate%20change/default.html