New Developments in Global Warming and CEQA - SB 97 and Attorney General Settlement of CEQA Lawsuit

August 31, 2007, by Meyers Nave

SB 97 also requires OPR to prepare and submit guidelines to the Resources Agency for the mitigation of GHG emissions and their effects by July 1, 2009. The Resources Agency shall adopt the regulations by January 1, 2010. Interestingly, this is the same deadline for the California Air Resources Board (CARB) to adopt regulations for early action measures to reduce GHG emissions under AB 32.

It is unclear how the requirement to prepare regulatory guidelines will affect the obligation to perform GHG analysis under CEQA while the regulations are being developed. However, since the bill only "exempts" two types of projects, it likely will not provide a successful defense to challenges to GHG analysis for other projects. In addition, the regulations to be developed under SB 97 relate to mitigation measures for GHGs which seems to assume that the emissions are a significant adverse environmental effect under CEQA for at least certain projects. Ultimately, the effect of SB 97 on CEQA review will likely be subject to interpretation by the courts.

SB 97's provisions are added as a new Public Resources Code Section 21083.05 and will be repealed as of January 1, 2010.

Second, the Attorney General entered into a settlement agreement with San Bernardino County to dismiss its lawsuit against the County over the adequacy of the analysis of GHG emissions in the environmental impact report for the County General Plan. Under the terms of the settlement, the County agrees to adopt a Greenhouse Gas Emissions Reduction Plan (Plan) within 30 months (essentially January 2010). The Plan shall address the reduction of GHGs from both discretionary land use decisions and County operations. The elements of the Plan include: (1) an inventory of all known or reasonably discoverable sources of GHGs that currently exist in the County; (2) the amount of GHG emission levels in the County in 1990, currently, and projected for 2020 due to County discretionary land use decisions and County operations; and (3) a target for reduction of GHG emissions and identification of feasible GHG emission reduction measures to meet the target. The County shall conduct environmental review under CEQA for the Plan and related General Plan Amendment.

The Agreement stipulates that no definitive sources exist for creating the inventories and the County will rely on state and regional air quality control boards and agencies for data for the inventory. Further, the County may rely on data and standards promulgated by CARB under AB 32 to satisfy the Agreement requirements. The Agreement acknowledges that the County will incur significant expense in implementing the Agreement (estimated at $500,000). The Attorney General agrees to use its best efforts to assist the County in obtaining funds from state and federal sources.

The settlement is interesting because it results in the dismissal of the only lawsuit filed by the Attorney General on GHG analysis under CEQA, even though the Attorney General has submitted comment letters on CEQA documents for other projects. However, the settlement does not establish a road map for analysis and mitigation of GHG emissions under CEQA. Instead, it requires the development of a planning document for reduction of GHG emissions that will be subject to CEQA review. The Agreement intertwines the development of the local Plan with the implementation of AB 32. Certain elements of the Plan can rely on AB 32 implementation measures, especially for inventory requirements. Overall, the settlement is cast as the voluntary development of a GHG reduction plan rather than the requirement to analyze and adopt mitigation measures for GHGs under CEQA.

The only clear direction from these two developments is that transportation or flood protection projects funded by the 2006 bond measures are immune from lawsuits challenging GHG analysis under CEQA. Otherwise, whether or how to proceed with GHG analysis under CEQA remains clouded in uncertainty. Meyers Nave is providing advice to numerous clients on options for GHG analysis that meet the client's objectives and minimize legal risk. The firm also is defending lawsuits challenging the adequacy of GHG analysis under CEQA. Presently, the treatment of GHGs in CEQA documents vary from no analysis of GHGs because the analysis is too speculative or infeasible, to a quantified analysis with a determination of significance and adoption of mitigation measures as appropriate. Unfortunately, there is no clear answer as to what type of analysis is legally adequate. However, given the growing prominence of GHGs and climate change as a CEQA issue, it appears that the less analysis of these issues in CEQA documents, the greater the risk of a successful legal challenge.

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