By Leslie Z. Walker
In the last weeks of 2009, the Natural Resources Agency adopted CEQA Guidelines Amendments for the mitigation of greenhouse gas emissions (“Amendments”), while the San Joaquin Valley Air Quality Management District (“SQAQMD”) became the first air district in the state to adopt thresholds of significance, which will likely face challenge from the California Attorney General.
CEQA Guideline Amendments
Just days before the January 1, 2010 deadline, the Natural Resources Agency adopted CEQA Guideline Amendments for the quantification and mitigation greenhouse gas emissions on December 30, 2009. The Amendments will not be effective however, until 30 days after the Office of Administrative Law transmits them to the Secretary of State.
The most important sections of the Amendments are:
- Section 15064: The Amendments require a lead agency make a “good-faith effort, based to the extent possible on scientific and factual data, to describe, calculate or estimate the amount of greenhouse gas emissions resulting from a project.” The agency may use a quantitative or qualitative analysis. (§ 15064.4(a).) This represents a change from the originally proposed amendments which omitted the reference to “scientific or factual data.” The guidelines provide a list of factors to be considered in assessing the significance of the impact from GHG emissions including increases or reductions in GHG caused by the project, the applicable thresholds, and the project’s compliance with local, regional, or statewide GHG reduction plans. (§ 15064.4(b).)
- Section 15093: The statement of overriding considerations may consider the region-wide or statewide environmental benefits.
- Section 15125: An EIR must discuss any inconsistencies between the proposed project and regional blueprint plans and plans for GHG emission reduction.
- Section 15126.4: Mitigation measures may include measures in an existing plan or mitigation program; implementation of project features; off-site measures, including offsets; GHG sequestration. Mitigation in a plan may include project-specific mitigation.
- Section 15183: Projects may tier from programmatic level GHG emissions analysis and mitigation. Section 15183 details what a GHG Emission Reduction Plan should contain. A later project may use the plan for its cumulative impacts analysis.
- Appendix G: GHG added to list of categories. Transporation and Traffic modified to expand congestion analysis beyond level of service and remove reference to parking.
San Joaquin Valley Air Pollution Control District
On December 17, 2009, the SJVAPCD adopted Addressing Greenhouse Gas Emissions Impacts Under the California Environmental Quality Act, which proposes performance based thresholds of significance for stationary sources and development projects. The thresholds will be based on best performance standards or “BPS.” BPS are yet to be determined, but once they are, projects complying with them would be considered to have a less than significant impact.
The California Attorney General has expressed opposition to this strategy claiming it leaves a number of unanswered questions including:
- What defined, relevant environmental objective is the threshold designed to meet, and what evidence supports selection of that objective?
- How does the threshold take into account the presumptive need for new development to be more GHG-efficient than existing development?
- Will the threshold routinely require new projects to consider mitigation beyond what is already required by law?
See November 4, 2009 letter from Attorney General.
The SJVAPCD web site contains links to other air district’s addressing the issue of thresholds, including the Bay Area Air Quality Management District, which is proposing numeric, rather than performance-based thresholds. The Attorney General seems to like this better (December 2, 2009 letter), but its practical utility remains uncertain.
Leslie Z. 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.