By Leslie Z. Walker
Two months ahead of the deadline mandated by SB 97 (Chapter 185, Statutes 2007; Public Resources Code section 21083.05), the Governor’s Office of Planning and Research (“OPR”) proposed amendments to the CEQA Guidelines for the mitigation of greenhouse gas emissions (“Proposed Guidelines”) and transmitted them to the Resources Agency for rulemaking on Monday, April 13, 2009.
SB 97 requires OPR “prepare, develop, and transmit to the Resources Agency, guidelines for the mitigation of greenhouse gas emissions or the effects of greenhouse gas emissions,” on or before July 1, 2009. OPR published a preliminary draft on January 8, 2009, and thereafter received public comment via letters and public workshops.
The language of the Proposed Guidelines largely mirrors the draft guidelines released in January 2009. (See No Surprises in Draft CEQA Guidelines for Greenhouse Gas Emissions.) The Proposed Guidelines require lead agencies to “describe, calculate, or estimate the amount of greenhouse gas emissions resulting from a project,” by either using a model or methodology to quantify greenhouse gas emissions or relying on a qualitative analysis or performance based standards. (Proposed Guidelines, § 15064.4 subd. (a).) The two most significant changes from the earlier released draft are: 1) clarification that general standards for mitigation in California Code of Regulation, title 14, section 15126.4 subdivision (a) ("Guidelines") apply to the mitigation of greenhouse gases and 2) clarification on the tiering process.
The Proposed Guidelines provide that lead agencies shall consider “feasible means of mitigating greenhouse gases,” aligning the greenhouse gas mitigation requirement with the Guidelines section 15126.4 subdivision (a) requirement for mitigation of other impacts. (Proposed Guidelines, § 15126.4 subdivision (c). The Proposed Amendments suggest five, non-exclusive forms of mitigation including:
- Measures in an existing plan or mitigation program;
- Reductions through the implementation of project features;
- Off-site measures;
- Sequestration; and
- Programmatic documents may identify specific measures that may be implemented on a project by project basis.
The Proposed Guidelines, similar to the draft guidelines, recognize the advantages of addressing greenhouse gas emissions at a programmatic level. For example, when determining a project’s incremental contribution to a cumulative effect, a lead agency may determine that a project’s contribution is not cumulatively considerable if the project will comply with the requirements of a previously approved plan or mitigation program, including, a plan for the reduction of greenhouse gas emissions. When relying on this plan, the lead agency is required to explain how the requirements of the plan ensure that the project’s incremental contribution to the cumulative effect is not cumulatively considerable. (Proposed Guidelines, § 15064 subd. (h)(3).)
Following the release of the draft guidelines, OPR has added a section governing the use of tiering for the analysis of greenhouse gases. According to Proposed Guidelines section 15183.5:
"lead agencies may analyze and mitigate the effects of greenhouse gas emissions at a programmatic level . . Later project-specific environmental documents may tier and/or incorporate by reference that existing programmatic review. Project-specific environmental documents may rely on and EIR containing a programmatic analysis of greenhouse gas emissions . . ."
The section further provides that if a public agency analyzes and mitigates greenhouse gases in a greenhouse gas reduction plan or similar document, that plan or document may be used in a cumulative impacts analysis. The section has no mandatory provisions for the greenhouse gas reduction plan, but provides that the plan may do the following:
- Quantify greenhouse gas emissions, both existing and projected over a specified time period, resulting from activities within a defined geographic area;
- Establish a level, based on substantial evidence, below which the contribution to greenhouse gas emissions from activities covered by the plan would not be cumulatively considerable;
- Identify and analyze the greenhouse gas emissions resulting from specific actions or categories of actions anticipated within the geographic area;
- Specify measures or a group of measures, including performance standards, that substantial evidence demonstrates, if implemented on a project-by-project basis, would collectively achieve the specified emissions level;
- Establish a mechanism to monitor the plan’s progress toward achieving the level and to require amendment if the plan is not achieving specified levels; and
- Be adopted in a public process following environmental review.
(Proposed Guidelines, § 15183.5 subdivision (b).) A broader and more detailed greenhouse gas reduction plan will yield greater benefits in the long term in terms of CEQA streamlining and issue reduction in later CEQA documents.
Finally, the section clarifies that residential and mixed use and transit priority projects as defined in SB 375 (Chapter 728, Statutes 2008). (See SB 375: A Subtle Shift in the State-Local Long Range Planning Paradigm) need not analyze greenhouse gas emission resulting from cars and light trucks.
Other Important Provisions
Thresholds of Significance – “When adopting a threshold of significance, a lead agency may consider thresholds of significance previously adopted or recommended by other public agencies, or recommended by experts, provided the decision of the lead agency to adopt such threshold is supported by substantial evidence.” (Proposed Guidelines, § 15064.7 subd. (c).)
Appendix F – The Proposed Guidelines revise Appendix F to clarify that EIRs must specifically consider a project’s energy use.
Appendix G – The Proposed Guidelines make the following three important revisions to Appendix G: addition of 1) Forestry and 2) Greenhouse Gas Emissions to the environmental checklist and 3) amend the checklist questions related to Transportation and Traffic.
With respect to Forestry, the Proposed Guidelines change the Agriculture Resources category to Agriculture and Forest Resources and ask whether the project will:
- Conflict with existing zoning for, or cause rezoning of, forest land . . . or timberland; or
- Result in the loss of forest land or conversion of forest land to non-forest use.
With respect to Greenhouse Gas Emissions, the Proposed Guidelines ask whether the project would:
- Generate greenhouse gas emissions, either directly or indirectly, that may have a significant impact on the environment; or
- Conflict with any applicable plan, policy or regulation of an agency adopted for the purpose of reducing the emission of greenhouse gases.
With respect to Transportation and Traffic, the Proposed Guidelines revise the questions to address not just the capacity of the street system, but the capacity of the entire circulation system, including intersections, streets, highways and freeways, pedestrian and bicycle paths, and mass transit. Furthermore, the Proposed Guidelines remove consideration of adequate parking capacity from the Transportation and Traffic portion of the checklist.
The Proposed Guidelines verify what local agencies already know – they have to quantify or describe greenhouse gas emissions (Proposed Guidelines, § 15064.4) and mitigate them where feasible (Proposed Guidelines, § 15126.4 subd. (c)), and this is much easier to do where a greenhouse gas reduction plan or programmatic level document with a greenhouse gas mitigation programs has been adopted. The Proposed Guidelines further indicate what is allowable in terms of quantification and mitigation methods, and tiering processes for the greenhouse gas emission analysis, but the Proposed Guidelines do not necessarily provide guidance on how to evaluate and mitigate the greenhouse gas impacts of individual projects in the absence of adopted thresholds of significance, or adopted greenhouse gas reduction plans or programmatic documents with adequate greenhouse gas mitigation components.
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.