Climate Change and Green Initiatives

Global Climate Change: Finally, a 'Trust' Worthy Solution?

Environmental groups may have developed a way to repurpose a legal theory traditionally implemented to protect water resources, the “public trust doctrine,” to push forward legal measures to combat climate change and reduce greenhouse gas emissions. 

CARB Adopts Final GHG Cap-and-Trade Program

Attorney Authors: 

After surviving a highly publicized ballot box challenge and lawsuit, the California Air Resources Board ("CARB") unanimously adopted a final greenhouse gas ("GHG") cap-and-trade program regulation.  The cap-and-trade program is considered to be the cornerstone of CARB's implementation of California's landmark Global Warming Solutions Act of 2006, Assembly Bill 32 ("AB 32").  The first of CARB's cap-and-trade program auctions for allowances for use in 2013 will be held August 15 and November 14, 2012. 

Major industrial sources and electric utilities must begin compliance with the cap-and-trade program in 2013.  By 2015, distributors of transportation fuel and natural gas also become obligated to comply with cap-and-trade program requirements.   In addition, the cap-and-trade program will likely create a market for CARB-certified offset projects in areas of livestock management, elimination of ozone depleting substances, urban forest projects, and U.S. Forest projects.

To view the full summary of the program, follow this link.

Significant CEQA Streamlining Reform Bills Enacted

Attorney Authors: 

Three important reform bills designed to streamline California Environmental Quality Act (CEQA) processing and review for certain classes of projects have been enacted and will take effect January 1, 2012.  SB 226 creates a new exemption for urban infill and renewable energy projects.  It also makes a variety of amendments to both CEQA and SB 375, the landmark 2008 legislation designed to integrate California's land use, transportation and greenhouse gas (GHG) reduction policies.   AB 900 shortens the Court review for CEQA challenges to certified "leadership projects" by authorizing lawsuits to be brought directly in the Court of Appeal on an expedited schedule.  "Leadership projects" must be certified LEED silver or higher, be carbon neutral, create "high-wage, highly skilled" jobs, and result in an investment of at least $100 million in California's economy (among other requirements).  SB 292 is a narrow bill designed to accommodate a new sports stadium and convention center in downtown Los Angeles by  streamlining judicial review in exchange for reductions in GHG emissions and traffic impacts.

SB 226 is likely to have the broadest effects for public agencies and private developers by facilitating urban infill projects.  It will likely reduce the time and expense for CEQA review for infill projects.  SB 226 expands the definition of urban infill projects, strengthens CEQA's tiering provisions, and provides that impacts from greenhouse gas emissions will not defeat the urban infill exemption under certain conditions.

Click here for a more detailed analysis of these recent CEQA amendments.   

Court Rejects CEQA Challenge to GHG and Water Analysis in Addendum to 1994 EIR

Attorney Authors: 

Questions often arise as to whether an agency can rely on an "old" certified environmental impact report to approve a revision to a project that was never built.  In Citizens for Responsible Equitable Environmental Development (CREED) v. City of San Diego, the Court upheld the use of a 2008 Addendum to a 1994 environmental impact report (EIR) to approve a revised project.  The Court rejected arguments that the Addendum was insufficient because it failed to analyze greenhouse gas (GHG) impacts which were not addressed in the 1994 EIR.   A GHG analysis was not required because it was not new information that could not have been known in 1994 when the EIR was certified.  The Court found that GHG impacts were known as early as the 1970s.  The Court also found that the City properly incorporated and approved a new water supply assessment in the Addendum.  The opinion also provides good guidance on the requirement to present issues with specificity before the agency as a prerequisite for raising the issues in court (the exhaustion of administrative remedies doctrine).  Click here for a more detailed analysis of the case.

EPA Has Exclusive Authority to Regulate Greenhouse Gas Emissions

Attorney Authors: 

On June 20, 2011, in American Electric Power Co., Inc. v. Connecticut, the U.S. Supreme Court held that federal common law public nuisance claims for abatement of carbon dioxide emissions are barred because the Clean Air Act authorizes the U.S. Environmental Protection Agency to set greenhouse gas emission standards. 

Proposed Law Would Require Cities and Counties to Provide On-Line Building Permit Applications for Electric Vehicle Charging Stations

The California Legislature recently introduced S.B. 730, a bill that would mandate cities and counties to provide on-line building permit applications for electric vehicle charging stations.

S.B. 730 would amend Section 44272 and Section 19830 to the Health and Safety Code, which establish the State's Alternative and Renewable Fuel and Vehicle Technology Program. The Program is administered by the State's Energy Commission, which provides grants, loans, or other financial incentives for the development of innovative technologies that transform California's fuel and vehicle types to help attain the State's climate change goals. In particular, S.B. 730 would require local governments to provide online building permit applications for installation of vehicle charging equipment. In addition, S.B. 730 would require local governments to approve building permits applications for installation of vehicle charging equipment within one business day, and review the work completed under the permit within 7 days of completion of the work.

If signed in to law, S.B. 730 would not only require California's cities and counties to have online building permit applications for installation of vehicle charging equipment, but the bill would also speed up the response time for building permits and inspections for vehicle charging equipment.

The bill is scheduled for a committee hearing on May 2, 2011. You can follow the status of S.B. 730 here.

Apply Now: EPA is Selecting Communities for Sustainability Technical Assistance

The EPA recently announced the Building Blocks Program, designed to help interested communities adopt sustainable planning methods and a collaborative effort between the U.S. Department of Housing and Urban Development, the U.S. Department of Transportation, and the U.S. Environmental Protection Agency (EPA). Chosen communities will receive technical assistance for the implementation of development approaches that “protect the environment, improve public health, create jobs, expand economic opportunity, and improve overall quality of life.” Technical assistance may include a memorandum including specific steps for the community to take towards sustainable development approaches, public engagement through a workshop, and/or consultation with city decisionmakers. The knowledge gained through the program may assist cities in implementing general plan updates or local climate action plans. Interested communities should submit a letter of interest that requests one of the listed technical tools by February 23, 2011.

Bay Area Air Quality District Adopts CEQA Guidelines For Greenhouse Gas and Other Pollutants

The Bay Area Air Quality Management District (BAAQMD) adopted new CEQA Guidelines for analysis of air quality impacts. For the first time, it includes guidance on the analysis and determination of significant impacts for greenhouse gases (GHGs). The Guidelines set lower emission levels for other pollutants (such as ozone and particulate matter) that will result in a significant impact under CEQA. New standards for toxic air contaminants also are stricter and may make infill development adjacent to freeways and major roadways more difficult. Go here to read a full analysis of the new standards adopted by BAAQMD.

The adoption of the new CEQA Guidelines is a very significant development. For GHG analysis, it establishes strict numerical thresholds, which although voluntary, will likely become the default standards used by agencies. Many agencies will find it difficult to adopt alternative thresholds, although the adoption of climate action or GHG reduction plans may be used as an alternative for CEQA analysis. These Guidelines are also of interest to agencies located outside the Bay Area, since other air quality districts will likely consider the BAAQMD Guidelines in establishing their own CEQA standards for GHGs.

CA Court of Appeal Issues First Decision on CEQA and Greenhouse Gas Emissions

The California Court of Appeal issued its first decision on the analysis and mitigation of greenhouse gas emissions (GHGs) under the California Environmental Quality Act (CEQA). The Court ruled that the mitigation of GHGs for a large refinery project was inadequate under CEQA and set aside the environmental impact report (EIR) prepared for the project. In Communities For A Better Environment v. City of Richmond, several environmental groups challenged the City's adoption of a mitigation measure which required the development of a mitigation plan, within one year after the Project approval, to completely reduce the refinery project's new GHG emissions. The Court ruled the mitigation violated CEQA because no specific measures were required, and there was no evidence of the amount of GHG reductions that would result from the proposed measures. The Court found that, in situations where the feasibility of mitigations is not known, the mitigations must be reviewed and analyzed as part of the CEQA public process, not deferred to the future. In addition, the Court was critical of the analysis of GHGs in the EIR which did not articulate a clear standard for determining the significance of Project impacts. The Court also ruled that the EIR's project description violated CEQA, but rejected a challenge based on "piecemealing" of the Project.

The most important aspect of this case is that it establishes legal authority on CEQA requirements for the analysis of GHGs. The Court stated that new recent scientific information on GHGs and their cumulative impact on climate change should be analyzed in the revised EIR. Specific mitigations and an analysis of their efficacy should be included in the revised EIR and subject to public comment and review. The Court acknowledged the difficulties presented by "evolving technologies and scientific protocols" regarding GHGs, but found that these did not excuse the City from its obligation under CEQA to analyze and mitigate environmental impacts. The combination of this case and the recent adoption of the new CEQA Guidelines requiring the analysis of GHGs, makes clear that GHGs must be addressed in CEQA documents. The one important area that awaits further legal guidance is the proper standard for determining whether a project's GHG emissions are a significant cumulative impact. Local air districts are providing guidance on this issue, but the legal adequacy of a significance threshold has not yet been addressed by the courts.

Go here to read the full analysis of this court decision.

Counties Should Consider Adopting Wind Ordinances Before Significant Restrictions Take Effect

Counties that have not done so should consider adopting wind energy system ordinances before Dec. 31, 2010, when restrictions on wind ordinance regulations will take effect pursuant to Assembly Bill No. 45 (“AB 45”). AB 45 encourages counties to adopt ordinances that provides for the installation of small wind energy systems and declare s it to be the policy of the state to promote and encourage the use of distributed renewable energy systems and to limit obstacles to their permitting and use, including minimization of permitting costs. (See Govt.

CEQA Guidelines on Greenhouse Gas Impacts Take Effect in March

On March 18, 2010, amendments to CEQA guidelines will take effect, requiring the analysis of greenhouse gas (GHG) impacts.

So, any remaining questions on whether CEQA requires GHG analysis have been eliminated. The issue now is how to perform the analysis. The State CEQA Guidelines left discretion to public agencies to determine the methodology and standards of significance for evaluating GHG impacts. Some air quality districts are providing some guidance for how agencies may address this issue, but the approaches are not uniform. Agencies need to decide how they are going to perform this analysis, considering issues such as a quantified versus qualitative standard and the use of a programmatic analysis based on adoption of a GHG reduction or climate action plan.

These challenging issues are addressed in an article by our firm, Meyers Nave, published this week. The article describes the applicable regulations and evaluates the issues and risks presented by different approaches. Click here to read the article.

EIR Required for Ordinance Banning Plastic Bags

In Save the Plastic Bag Coalition v. City of Manhattan Beach, the Second District Court of Appeal (Los Angeles) has held that the California Environmental Quality Act (CEQA) required the City of Manhattan Beach to prepare a full Environmental Impact Report (EIR) before approving an ordinance to ban stores and other retail outlets from distributing plastic bags. The case illustrates the breadth of agency approvals which may qualify as “projects” requiring environmental review under CEQA, and the low threshold for CEQA’s requirement that a project be studied in an EIR if there is a “fair argument” that it could cause a significant environmental impact. However, perhaps the more significant ruling is that the petitioner, an association of plastic bag manufacturers, was granted standing to oppose the City’s compliance with CEQA. Read more here.

California To Go Green! First Mandatory State Green Building Code in Nation

Last week the California Building Standards Commission unanimously approved a new building code “2010 CalGreen” that will take effect January, 2011. 2010 CalGreen is an update to the 2008 California Green Building Standards discussed in an earlier post and differs from the 2008 Green Building Standards Code in that its provisions are stricter and mandatory.

2010 CalGreen has been hailed by the San Francisco Chronicle as the most stringent and environmentally friendly state building code. However, a coalition of environmental and green building certification groups are criticizing 2010 CalGreen as a step backward, since its requirements are less strict than LEED standards and building codes already adopted in some California cities, such as Los Angeles and San Francisco. The Los Angeles Times reported that the some groups take issue with CalGreen because "the tiers cause confusion in the marketplace.” Others are in support of 2010 CalGreen because it was drafted to allow builders to receive green certification without paying for costly third-party green certification. Although the Commission touts the benefits of the 2010 CalGreen over private, point-based systems such as LEED, cities may still require LEED certification in their local green building codes. San Francisco, for one, has no intention of changing its LEED certification requirements, according to the Chronicle.

Regardless, everyone seems to agree that the mandatory basic requirements of 2010 CalGreen are a major step toward a greener California. 2010 CalGreen requires that new construction reduce water consumption by 20%, divert 50% of construction waste from landfills, and install low pollutant-emitting materials such as paints and carpets. The California Air Resources Board estimates that the Code’s mandatory provisions will reduce greenhouse gas emissions by 3 million metric tons equivalent by 2020. 2010 CalGreen also contains more stringent voluntary provisions for cities to use as a baseline in order to reduce greenhouse gas emissions.

The State Building Standards Commission is working to release a draft of 2010 CalGreen in the next few weeks.  

Metropolitan Transportation Commission (MTC) Announces Funding for Innovative Transportation Plans, Including Climate Action Plans

As the new year approaches, my colleagues and I are reflecting on what this year brought to climate change law and looking ahead for upcoming regulations. For example, this month the Environmental Protection Agency (EPA) issued a final finding that greenhouse gas emissions pose a danger to human health and the environment. We at Meyers Nave are particularly focused on the struggle of cities and counties to access the funds needed to implement recent climate change laws in a poor economy. To this end, we welcome the Metropolitan Transportation Commission's announcement that it has established a pool of funding to be used locally for innovative transportation projects.

MTC is a nine-county Bay Area regional transportation planning body and its funding will be focused on at least four components. The first, and most remarkable for cities, is the funding of climate action plans that contain innovative parking campaigns such as SFPark. Other programs that may receive funding include Safe Route to Schools programs, educational outreach for the link between climate change and transportation choices, and evaluation models to ensure that all regional projects have consistent metrics.

This program is one step towards the reductions required in climate legislation such as AB 32 and SB 375, and a step away from historical transportation planning which focuses on increasing capacity for cars.

For more information regarding the funding program, see San Francisco Streetsblog report of MTC’s funding announcement.

SB 375 - RTAC Issues Final Report on Setting Greenhouse Gas Emission Targets

The latest step in the implementation of SB 375, a report issued by the Regional Targets Advisory Committee (RTAC) recommending methodologies for setting regional greenhouse gas (GhG) targets, was published yesterday. SB 375 requires that the California Air Resource Board (CARB) set regional GhG targets for passenger vehicles and light trucks for 2020 and 2035 by September 30, 2010 for the 18 Metropolitan Planning Organizations (MPOs) in the state. CARB’s target was initially set a five million metric tons reduction for transportation related planning programs. The RTAC, tasked with researching factors and methodologies to be considered in establishing the GhG targets, finalized and published its report on September 29. For more information on the RTAC process, see our previous blawg post.

The RTAC's final conclusions are especially relevant for localities amending their general plans in the next couple of years. The RTAC Report recommends that the targets be expressed as percent per-capita GhG reduction from the base year of 2005. Targets would be the most ambitious achievable for that region in order to respond to regional differences. The Report recommends that CARB create a list of Best Management Practices (BMPs) for tools to be used in target setting, target compliance and accuracy checks. The Report also recognizes that funding will be critical for the success of SB 375 and that the $90 million appropriation made by SB 732 for sustainability planning is not nearly enough funding for local governments to implement SB 375. To this end, the Report includes four pages of suggestions for the state in directing funds towards transit and sustainability planning in SB 375.

Going forward, the RTAC has recommended following steps for CARB to take in setting the targets: 1) MPOs must first prepare an analysis of their adopted fiscally constrained Regional Transportation Plan; 2) CARB uses these results to compile MPO-specific GhG emission levels for 2005 and GhG targets for 2020 and 2035; 3) CARB creates “most achievable ambitious greenhouse gas emission reduction” strategies to achieve targets; 4) MPOs analyze strategies; 5) CARB considers stakeholder feedback; 6) CARB recommends draft targets; 7) Final emission targets are set by September, 2010.

Much of the success of SB 375 hinges on the stringency of the GhG targets set by CARB and the funding available to localities for SB 375 implementation.

Will Proposed Elimination of the Office of Planning and Research (OPR) Affect Climate Change Laws?

Proposed Assembly Bill 180 (the State Budget Act, as recently amended but not enacted) is proposing to eliminate the Office of Planning and Research (OPR) by January 1, 2010 in an effort to address the state budget shortfall. OPR’s responsibilities regarding the State Clearinghouse and Planning Unit for the California Environmental Quality Act (CEQA) would be transferred to the California Air Resource Board (CARB). The question remains whether CARB, which favors a more detail-oriented and ambitious plan to cut greenhouse gases than OPR, will assume more CEQA GHG regulation authority in the future if this Bill passes.

Recall that AB 32, the Global Warming Solutions Act of 2006, requires the State to reduce GHG emissions to 1990 levels, as determined by CARB. In 2007, SB 97 established that GHGs should be included in CEQA and in January OPR proposed draft amendments to CEQA Guidelines that include guidance for analyzing GHGs under CEQA.

OPR first requested CARB's assistance with the Guidelines and CARB released a draft document for GHG significance thresholds under CEQA that outlines an ambitious sector-based approach that determines a project’s significance level based on both quantitative standards and qualitative, performance-based standards. OPR chose not to include ARB’s recommendations in its final Guidelines, which recognize that although climate change is ultimately a cumulative impact, not every project with GHG emissions must be determined to contribute to significant, cumulative impacts.

The Natural Resource Agency, the entity with final control over OPR's Guidelines, has released a Notice of its proposed amendments to the Guidelines. Since the Natural Resource Agency must pass the Guidelines by January 1, 2010, CARB does not have direct authority to influence the Guidelines even if the Bill passes.

Only time will tell if ARB will assume any residual or additional GHG regulatory duties if the dissolution of OPR occurs. As of now, it is just food for thought.

Note that CARB is also the state agency in charge of setting regional greenhouse gas targets through SB 375.

Resources for Greenhouse Gas Reduction Measures and Plans

Many public agencies are considering the adoption of greenhouse gas reduction measures and plans. These plans help agencies comply with developing legal requirements. They also benefit agencies by retaining local control, reducing legal risk, and saving energy and other costs. There are several resources that provide guidance, technical assistance and funding for the development of these plans. Read more here.

SB 375 Targets Still Evolving - Cities and Counties Stay Tuned

SB 375 requires that the California Air Resource Board (CARB) set regional greenhouse gas targets by September 30, 2010. Currently, CARB’s target is a five million metric tons reduction for transportation related planning programs, but this is subject to change. CARB created the Regional Targets Advisory Committee (RTAC), which is currently considering methodologies and factors that should be taken into account when setting CARB's greenhouse gas emission targets. The RTAC has held seven meetings since February. In its previous meetings, the RTAC focused on whether greenhouse gas emission targets should be set regionally or per capita and how the targets will account for inter-regional travel. Today, the RTAC meeting focused on regional data regarding factors that affect regional greenhouse gas emissions (such as distance between jobs and residential development and the percent increase in developed land).

The fact that RTAC is slowly moving through the long target setting process means that cities and counties will need to use their best judgment in regulating greenhouse gas emissions in the interim. Although SB 375 does not trump local land use laws, it is still an important law for localities to follow because it links regional plans to transportation funding and housing elements. Cities should stay tuned to the RTAC's final conclusions, especially those localities amending their general plans in the upcoming couple of years. Until RTAC issues its conclusions, certain greenhouse gas emissions regulations, such as the inventorying of greenhouse gases, are certain; others, such as “feasible mitigation measures,” remain somewhat ambiguous.

For handouts and agendas for each of the RTAC’s meetings, click here.

Energy Efficiency and Conservation Block Grants Offer Unique Opportunities for California Cities

The United States Department of Energy’s (DOE) Energy Efficiency and Conservation Block Grant (EECBG) program, administered under the American Recovery and Reinvestment Act (ARRA) provides grants to fund projects that reduce energy use and fossil fuel emissions, and that improve energy efficiency. The deadline for units of local governments and tribal applicants to apply for these grants is June 25, 2009.

Latest OPR CEQA Guidelines Emphasize Local Greenhouse Gas Reduction Plans in CEQA Review

Senate Bill 97 directed the Office of Planning and Research (OPR) to develop regulations for the analysis and mitigation of greenhouse gases under the California Environmental Quality Act (CEQA). OPR has issued a final draft of these regulations as amendments to the CEQA Guidelines. For the Guidelines to become law, the Natural Resources Agency must approve them by January 1, 2010. Read more here.

Recovery Act Funding for California Green Building

With the adoption of new laws requiring greener construction and greater energy efficiency, many local officials are wondering whether they will be able to fund critical infrastructure and building projects.

Last year, the State adopted the California Building Code, which contains both mandatory and voluntary green building and energy efficiency measures for public and private buildings. Additionally, at least thirty California cities and counties have enacted local green building ordinances in the last three years. All of these local green building regulations require LEED Ô certification, which can cost between 1% and 7% of a project’s overall cost.

Many local officials hope for funding from the American Recovery and Reinvestment Act, which allocated $60 billion for “green programs.” In an earlier post, we discussed California's share of funding allocated to transportation-related infrastructure. As of March 31, California will also be allocating infrastructure funds to storm sewers, new parks, government buildings, offices, and airport terminals. Additionally, the State will be receiving funds from the Department of Energy (DOE) and the General Service Administration (GSA). The DOE will receive roughly $32 billion of these funds for green programs, most of which will be focused on energy efficiency, renewable energies, and state weatherization. The GSA is expecting approximately $5.5 billion of these funds designated for green building. Federal green building funds are expected to be spent on greening federal buildings, state energy programs, state weatherization, and schools.

Local officials will be watching Governor Schwarzenegger’s office as it allocates funding to “shovel ready” projects. The estimated time for the funds to hit the market is the beginning of next year.

EPA Moves Toward Federal Regulation of Greenhouse Gases

Nearly two years after the U.S. Supreme Court directed the Environmental Protection Agency to determine whether carbon dioxide is a pollutant that endangers public health and welfare, the EPA has prepared and forwarded a so-called "endangerment finding" that could result in the regulation of carbon dioxide and other greenhouse gases under the federal Clean Air Act. At this point the EPA has only prepared a finding, and is not proposing how greenhouse gases should be regulated, but approval of the finding would be expected to initiate that discussion.

EPA's finding is expected to be published in the Federal Register in April, followed by a 60-day public comment period and public hearings, prior to finalization. The finding follows comments from EPA Administrator, Lisa Jackson, suggesting that she would declare global warming a public health threat. While MSNBC has reported that environmental groups are pleased with the proposed finding, critics of the finding, including the United States Chamber of Commerce, worry about the increased volume of clean air permits that my be required if federal regulation of greenhouse gasses is implemented.

More information on EPA's proposed finding can be found here and here.

A Bill to Save Trees and Energy

Senate Bill 1399 was recently introduced in the California State Senate to strike a balance between the installation of solar collectors on a building and the preservation of existing trees and shrubs. Current state law prohibits a person owning or in control of property from allowing a tree or shrub to be placed or to grow on the property subsequent to the installation of a solar collector on the property of another if the tree or shrub casts a shadow of a specified size on the solar collection absorption area during specified times. Cities and counties may adopt an ordinance exempting its jurisdiction from the state law prohibition. Among other things, SB 1399 would exempt trees and shrubs planted prior to the time of the installation of a solar collector and trees and shrubs that are subject to a local ordinance. A hearing on SB 1399 is scheduled before the Senate Energy, Utilities and Communications Committee on April 1.

Trial Court Rules Global Warming Analysis Not Required Under CEQA

A Riverside County Superior Court judge ruled that there was no legal requirement to analyze greenhouse gases (GHGs) and global warming impacts under the California Environmental Quality Act (CEQA) (Highland Springs v. City of Banning, Case No. 460950 (Riverside County Superior Court, January 29, 2008)).

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