Posted by: mstermitz | June 25, 2009

CEQA & Climate Change Guidelines

[Originally posted 5-15-09]
On April 13, 2009, Governor Schwarzenegger’s Office of Planning and Research published for comment proposed revisions to the California Environmental Policy Act (CEQA), to be used in evaluating greenhouse gas as part of the determination whether a project that requires government approval may have a significant environmental effect. The revisions in their entirety can be found here, in a redline version of CEQA Guidelines showing the proposed changes.

The proposed changes were mandated by the California Legislature in AB-97, with a January 1, 2010 deadline for final adoption. Attorneys representing either project proponents or opponents will find much to ponder in these changes, which leave no doubt as to their magnitude:

A lead agency may consider the following when assessing the significance of impacts from greenhouse gas emissions on the environment:
(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.
(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. Such regulations or requirements must be adopted by the relevant public agency through a public review process and must include specific requirements that reduce or mitigate the project’s incremental contribution of greenhouse gas emissions. If there is substantial evidence that the possible effects of a particular project are still cumulatively considerable notwithstanding compliance with the adopted regulations or requirements, an EIR must be prepared for the project.

Areas that promise to be both the most difficult to work through during project development and to have the most potential for litigation, include section 15130 – evaluating greenhouse gas emissions in the context of cumulative effects; and section 15126.4 – mitigation. For example, the mitigation section is admirably explicit, but potential for disagreement certainly exists in interpreting whether proposed off-site mitigation measures meet the standard “of a reasonable plan of mitigation.”

There is an express link between these CEQA provisions and California’s landmark AB-32 climate change regulations, providing that any CEQA analysis should evaluate “the extent to which the project could help or hinder attainment of the state’s goals of reducing greenhouse gas emissions to 1990 levels by the year 2020 as stated in the Global Warming Solutions Act of 2006.”

These far-reaching changes to CEQA will also be watched closely by attorneys with federal NEPA projects, as California is ahead of the federal government in promulgating guidance on folding climate change into existing environmental statutes.

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