By Leslie Z. Walker

CEQA practitioners have spent the last year anxiously anticipating the Governor’s Office of Planning and Research (OPR) advice to local agencies on the evaluation of greenhouse gas (GHG) emissions and their effect on climate change in the CEQA process. On June 19, 2008, OPR offered a peek at its perspective by issuing the Technical Advisory CEQA and Climate Change: Addressing Climate Change Through California Environmental Quality Act Review.

Since the passage of Assembly Bill 32, the Global Warming Solutions Act of 2006 (Chapter 488, Statutes 2006), activists have argued that CEQA requires lead agencies to address the effects of GHG emissions from a proposed project in their environmental analysis. The passage of Senate Bill 97 (Chapter 185, Statutes 2007) strengthened this argument by calling for OPR to draft CEQA Guidelines for “the mitigation of greenhouse gas emissions or the effects of greenhouse gas emissions” by July 1, 2009. The law directs the Resources Agency to certify and adopt the Guidelines by January 10, 2010. Draft Guidelines are expected to be released in the fall of 2008. In addition, OPR asked the ARB technical staff to recommend a method for setting thresholds of significance. Until the Guidelines and method recommendations are issued, practitioners have neither a consistent, agreed upon method for measuring GHG emissions, nor established thresholds of significance by which to evaluate the emissions once they are measured.

To provide some sense of their perspective on the issue, OPR issued the Technical Advisory. The Advisory recognizes the current limitations with respect to measurement and evaluation, but nonetheless calls for lead agencies to assess GHG emissions. For the most part, the Advisory places the burden on lead agencies to devise a strategy to deal with GHG emissions. The lead agency must select a modeling tool, determine what constitutes a significant impact, and design mitigation measures.

The Advisory calls for each lead agency to “develop its own approach to performing climate change analysis for projects that generate GHG emissions.” It calls for lead agencies to apply a consistent approach based on the best available information. The approach should involve three basic steps: “identify and quantify GHG emissions; assess the significance of the impact on climate change; and if the impact is found to be significant, identify alternatives and/or mitigation measures that will reduce the impact below significance.”

Identify and quantify GHG emissions – The lead agencies should: “make a good faith effort, based on available information,” to estimate the GHG emissions from the “vehicular traffic, energy consumption, water usage, and construction activities,” associated with a proposed project.

Assess the significance of the impact on climate change – The lead agency must determine what constitutes a significant impact by undertaking a project-by-project analysis. Lead agencies should carefully consider and document the proposed project’s direct, indirect and cumulative impacts.

Identify alternatives and/or mitigation measures – The lead agency must impose all feasible mitigation measures necessary to reduce GHG emissions to a less than significant level. Mitigation measures may include alternative project designs or locations that conserve energy and water, reduction in vehicle miles traveled, contribution to established regional or programmatic mitigation strategies, and carbon sequestration.

OPR acknowledged the difficulty of approaching the issue of climate change on a project by project basis. The Advisory recognized that “the global nature of climate change warrants investigation of statewide thresholds of significance for GHG emissions.” Further, OPR explained that, "CEQA can be a more effective tool for GHG emission analysis and mitigation if it is supported and implemented by sound development policies that will reduce GHG emissions on a broad planning scale and that can provide the basis for a programmatic approach to project-specific CEQA analysis and mitigation."

OPR points out that CEQA authorizes reliance on previously approved plans and mitigation programs that have adequately analyzed and mitigated GHG emissions to less than significant levels

Perhaps the most valuable part of the Advisory are the three attachments which include a comprehensive inventory of organizations, laws, and reports related to GHGs; an inventory and descriptions of modeling tools; and GHG reduction measures. The Advisory and attachments largely reiterate the strategies advocated by the Attorney General, including the Chart of Modeling Tools and the Fact Sheet on Mitigation Measures.

The Advisory makes clear, what SB 97 mandated – lead agencies are expected to include GHG emission analysis in their CEQA documents. But the Advisory provides little in the way of how to do so. For that guidance, we wait for the fall.

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.