Trial Court Rules Global Warming Analysis Not Required Under CEQA
The court decision did not provide a detailed explanation for its ruling that - "no law required the Banning City Council to consider global warming at the time it approved this project" except for referencing arguments in the opposition brief. The opposition brief argued that there was no regulations under CEQA or the local air quality management district that address global warming or GHGs. Furthermore, AB32 became effective after the EIR was certified and, in any event, does not address CEQA. Although the court rejected the global warming challenge, it set aside the EIR on other grounds, most importantly, due to inadequate analysis of water supply.
Although this is only a trial court ruling with limited analysis, it is important for several reasons. It is the first court ruling in a series of lawsuits filed by the Center for Biological Diversity arguing that global warming must be analyzed under CEQA. It also is the first ruling to address CEQA requirements in a project EIR. Prior decisions only addressed subsequent or supplemental EIRs and ruled that climate change impacts and AB 32 were not new information requiring the preparation of a new EIR (Natural Resources Defense Council v. The Reclamation Board of the Resources Agency, Case No. 06CS-01228 (
Sacramento County Sup. Ct, April 27, 2007) and American Canyon Community United for Responsible Growth v. City of American Canyon, Case No. 26-27462 (Napa County Sup. Ct., May 27, 2007).
Despite this ruling, the issue of whether and how to analyze global warming under CEQA remains uncertain. There is no specific statute or regulation that addresses the issue. The Attorney General continues to submit comment letters arguing that GHGs and global warming must be analyzed in CEQA documents. The Attorney General's position is that EIRs must quantify GHGs and require mitigation measures to reduce emissions based on AB32's GHG reduction goals. The Office of Planning and Research is formulating CEQA regulations to address GHG emissions pursuant to SB 97. However, these regulations are not required to be adopted until January 1, 2010.
In light of this legal uncertainty, Meyers Nave continues to advise our clients on the various options for addressing GHGs under CEQA and the legal risks associated with the different approaches. Our advice is guided by meeting the client's objectives and minimizing legal risk. We have provided guidance on this issue for numerous CEQA documents throughout the state. Meyers Nave's land use attorneys are also involved in defending lawsuits challenging the analysis of GHGs under CEQA.