By Leslie Z. Walker
Six months after releasing its Technical Advisory CEQA and Climate Change: Addressing Climate Change Through California Environmental Quality Act Review (see OPR on CEQA and Climate Change: Local Agencies Continue to Bear the Heat), the Governor’s Office of Planning and Research issued Preliminary Draft CEQA Guideline Amendments for Greenhouse Gas Emissions on January 8, 2009.The Guideline amendments were developed in response to Senate Bill 97 (Chapter 185, Statutes 2007; Pub. Resources Code, § 21083.05) which directs OPR to develop draft CEQA Guidelines for the mitigation of greenhouse gas emissions or the effects of greenhouse gas emissions by July 1, 2009.
The Guideline amendments (“Amendments”) provide direction on how to determine the significance of, and mitigate the effects of, greenhouse gas emissions (“GHG”). (Guidelines, §§ 15064.4 & 15126.4 subd. (c).). Additionally, the Amendments provide some assurance for agencies relying on general plan and other program level documents and expand the definition of regional plan to include, among other things, the sustainable communities strategy required by last year’s SB 375. (Chapter 728, Statutes 2008.) (See SB 375: A Subtle Shift in the State-Local Long Range Planning Paradigm.) Finally, the Amendments add GHG to the Environmental Checklist listed in Appendix G.
The Amendments explain both how an agency should “describe, calculate, or estimate” a project’s GHG, and what the agency should consider in determining the significance of the emissions. The Amendments allow agencies to identify emissions by either selecting a “model or methodology” to quantify the emissions or relying on “qualitative or other performance based standards." (Guidelines, § 15064.4 (b).) When assessing the significance of GHG emissions, lead agencies should consider the extent to which the project:
- Could help or hinder attainment of the state’s goals of reducing greenhouse gas emissions to 1990 levels by the year 2020;
- May increase the consumption of energy resources, especially fossil fuels;
- May result in increased energy efficiency of and a reduction in overall greenhouse gas emissions from an existing facility;
- Impacts or emissions exceed any threshold of significance that applies to the project; (Guidelines, § 15064.4 (c)) and
- Produces GHG emissions which would be cumulatively considerable. (Guidelines, § 15130 (f).)
Consistent with CEQA’s provision that a public agency should not approve a project if there is a feasible alternative or feasible mitigation measure available which would substantially lessen the significant environmental effects of the project, the Amendments provide that, “[l]ead agencies should consider all feasible means of mitigating greenhouse gas emissions.” (Pub. Resources Code, § 21002 & Guidelines, § 15126.4 (c)(1).) Mitigation may include:
- Project features, project design, or other measures which are incorporated into the project to substantially reduce energy consumption or greenhouse gas emissions;
- Compliance with the requirements in a previously approved plan or mitigation program for the reduction or sequestration of greenhouse gas emissions; and
- Measures that sequester carbon or carbon-equivalent emissions. (Guidelines, § 15126.4 subd. (c)(2)-(4).)
The Amendments further provide that if off-site measures or the purchase of carbon offsets are proposed as mitigation, the measures must be part of a reasonable plan of mitigation that the relevant agency commits itself to implementing. (Guidelines, § 15126.4 (c)(5).)
The Amendments encourage the reliance of project-level documents on general plan EIRs or other programmatic EIRs by providing that:
Project level CEQA documents need not provide additional project-level greenhouse gas emissions analysis or mitigation measures, if the proposed project is consistent with an applicable regional or local plan that adequately addresses greenhouse gas emissions, and the plan is one for which an EIR has previously been certified. (Guidelines, § 15152 subd. (i).)
Sustainable Communities Strategy
The OPR revised the Guidelines to reflect the SB 375 requirement that each region develop a sustainable community strategy. Guidelines section 15125 requires EIRs to discuss any inconsistency between the proposed project and applicable general plans and regional plans. The revision adds specific plans to this list, and defines regional plan to include, among other things, regional blueprint plans, sustainable community strategies, and climate actions plans.
Finally, the CEQA Guidelines contain Appendix G, an Environmental Checklist that agencies often use in preparing an initial study. The Amendments add GHG to the list of issues (including aesthetics, agriculture, air quality, biological resources, etc.) The Appendix suggests considering whether the project will generate GHG emissions and whether it will conflict with any applicable plan, policy or regulation of an agency adopted for the purpose of reducing GHG emissions.
OPR will hold two public workshops on the proposed Guideline amendments, one in Los Angeles on January 22, 2009 and one in Sacramento, on January 26, 2009.
Leslie Walker is an associate at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or 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.