By Leslie Z. Walker
Governor Schwarzenegger signed SB 97 (Chapter 185, Statutes 2007) Senator Dutton’s CEQA and greenhouse gas emission bill, into law on August 24. The legislation provides partial guidance on how greenhouse gases (“GHGs”) should be addressed in certain CEQA documents.
Last year, the legislature passed the Global Warming Solutions Act (AB 32; Chapter 488, Statutes 2006) which created a framework for the reduction of GHGs in California. The Act requires the Air Resources Board (“ARB”) to adopt rules and regulations, no later than January 1, 2012, to achieve the maximum feasible and cost-effective reductions in GHG emissions from GHG emission sources and categories of sources. The Act did not discuss whether or how GHGs should be addressed in CEQA documents.
SB 97 requires the Governor’s Office of Planning and Research (“OPR”) to prepare CEQA guidelines for the mitigation of GHG emissions, including, but not limited to, effects associated with transportation or energy consumption. OPR must prepare these guidelines and transmit them to the Resources Agency by July 1, 2009. The Resources Agency must then certify and adopt the guidelines by January 1, 2010. OPR and the Resources Agency are required to periodically review the guidelines to incorporate new information or criteria adopted by ARB pursuant to the Global Warming Solutions Act, scheduled for 2012.
So far, so good. The obligation to analyze GHGs in the interim period between now and the certification and adoption of the guidelines, is less clear.
The second part of SB 97 codifies safe harbor for highways and flood control projects. It provides that the failure of a CEQA document for a project funded by Highway Safety, Traffic Reduction, Air Quality, and Port Security Bond Act of 2006 or the Disaster Preparedness and Flood Prevention Bond Act of 2006 to adequately analyze the effects of GHG emission otherwise required to be reduced pursuant to the regulations adopted under the Global Warming Solutions Act (which are not slated for adoption until January 1, 2012), does not create a cause of action for a violation of CEQA. This portion of SB 97 has a sunset date of January 1, 2010.
The bill does not address the obligation to analyze GHGs in projects not protected by the safe harbor provision. One possible interpretation is that there is no duty until the guidelines are adopted, because CEQA Guidelines section 15007 subdivision (b), provides that guideline amendments apply prospectively only. Alternatively, it means a legal free-for-all until the guidelines are adopted as to the scope of required analysis.
Leslie Walker is an associate with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.