By Leslie Z. Walker

On January 29, 2008, Judge Thomas Cahraman of the Riverside Superior Court ruled that CEQA did not require the Banning City Council to consider the Global Warming impacts of a project approved prior to the enactment of AB 32.

In Highland Springs v. City of Banning, Case No. 460950 (Riverside County Superior Court, January 29, 2008), petitioners challenged the City of Banning’s approval of a project to develop 1,453 housing units with a school site and other amenities. The challenged approvals, including the certification of the EIR, occurred in October and November of 2006, prior to the effective dates of both AB 32 (Chapter 488, Statutes 2006) and SB 97 (Chapter 185, Statutes 2007). The court relied on the reasoning of respondents, holding, “as pointed out in the opposition brief and at oral argument, no law required the Banning City Council to consider Global Warming at the time it approved this project.”

Judge Cahraman’s ruling represents the first time a court has affirmatively declared that a project is not required to analyze greenhouse gases. The ruling should be read with caution, however, given the timing of the project, and the fact that the approvals were ultimately struck down on other grounds, including inadequate water supply analysis, failure to analyze the growth inducing impacts of the project, and rejection of alternatives with inadequate reason. As a trial court decision it may not be cited as legal precedent in other judicial proceedings.

White Paper on CEQA and Climate Change

On January 2, 2008, the California Association of Pollution Control Officers released a white paper entitled CEQA & Climate Change, which is intended as a guidance document to support local agencies in their compliance with AB 32.

The paper discusses potential thresholds of significance, analytical methodologies, and mitigation strategies for greenhouse gases. The authors suggest three basic options for lead agencies with regard to thresholds of significance and consider the benefits and detriments of each. The paper also examines modeling tools for measuring greenhouse gases and discusses the feasibility and effectiveness of available mitigation strategies.

For more news on Global Warming, visit the Climate Change category of Abbott & Kindermann’s blog at http://blog.aklandlaw.com/articles/climate-change/.

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.