By Leslie Walker

For the general public, the most exciting events so far this year on the climate change front have been at the national level. The Secretary of the Interior announced that the Polar Bear is a threatened species under the Endangered Species Act (16 U.S.C. § 1531 et seq.) because reduced sea ice coverage threatens its habitat; and Congress hotly debated, and then rejected, a bill to reduce greenhouse gas emissions to 66% below 2005 levels by 2050.

But for those of us in the planning and development world, the real excitement came this summer when we Governor’s Office of Planning and Research (“OPR”) and the California Air Resources Board (“ARB”) addressed the role of local government in the implementation of Assembly Bill 32 (Chapter 488, Statutes 2006), the Global Warming Solutions Act. (See OPR on CEQA and Climate Change: Local Agencies Continue to Bear the Heat and Local Government Responsible for 1% of Statewide GHG Emission Reduction According to ARB Draft Plan .) Of course, we have heard for months that the Attorney General claims AB 32 requires local government to evaluate and mitigate greenhouse gas (“GHG”) emissions in their CEQA documents, despite the absence of any stated requirements in the CEQA Guidelines. (See Attorney General Criticizes San Diego’s Smart Growth Strategy for Failure to Fully Address Global Warming Impacts and Attorney General’s Conference on Climate Change: Many Methods, No Answers.)

OPR Technical Advisory

After the 2006 passage of AB 32, the legislature passed Senate Bill 97 (Chapter 185, Statutes 2007), requiring OPR to draft CEQA Guidelines for the mitigation of GHG emission or the effects of GHG emissions by July 1, 2009. On June 19, OPR gave us a glimpse of the perspective those guidelines will reflect by issuing a technical advisory called CEQA and Climate Change: Addressing Climate Change through California Environmental Quality Act Review (“Advisory”).

The Advisory recognizes the current limitations with respect to the measurement and evaluation of GHG emissions. However, as far as the responsibility assigned to local agencies, the Advisory largely mirrors the perspective of the Attorney General. It places the burden on local agencies to devise a strategy to evaluate and mitigate GHG emission. Specifically, the Advisory calls for each agency to “develop its own approach to performing climate change analysis for projects that generate GHG emissions.” The strategy should involve three steps:

  1. Identify and quantify GHG emissions
  2. Assess the significance of the impact on climate change
  3. Indentify alternative and or mitigation measures

With respect to the first step, identifying and quantifying GHG emissions, the attachments to the report contains a list of modeling tools to quantify GHG emissions. Notably, the Urbemis model has been updated to calculate CO2 emissions. In addition, CARB has released for public review and comment the Draft Local Government Operations Protocol.

With respect to the second step, assessing the significance of the impact on climate change, the Advisory explains that the lead agency must determine what constitutes a significant impact on a project-by-project basis. OPR acknowledged the difficulty of this method and recognized that the global nature of climate change warrants investigation of statewide thresholds of significance for GHG emissions. On that note, OPR has asked the ARB technical staff to recommend a method for setting thresholds of significance.

With respect to the third step, the Attorney General’s website and the attachments to the Advisory both contain extensive lists of mitigation measures.

The Advisory points out that CEQA authorizes reliance on previously approved plans and mitigation programs that have that have adequately analysis and mitigated GHG emissions to less than significant levels. This echoes what many have been advising – that jurisdictions should address GHG emissions at the general plan level. That way, when approving a project, under Public Resources Code, section 21083.3, subdivision (b) the agency will only need to examine those environmental effects that are peculiar to the project and that were not analyzed or were insufficiently analyzed in the prior EIR.

In sum, the advisory reiterates what SB 97 mandated – lead agencies are expected to include GHG emission analysis in their CEQA documents. Unfortunately, the advisory does not tell us how to do so. We hope the draft guidelines released in the fall will provide more details.

Draft Scoping Plan

The Draft Scoping Plan, released this month by the ARB, brought better news: local governments are only responsible for approximately one percent of statewide GHG emission reductions.

AB 32 tasked the ARB with preparing a draft scoping plan to reduce GHG emissions to 1990 levels by 2020. (Health & Saf. Code, § 38550.) ARB must adopt the plan by January 1, 2009. (Health & Saf. Code, § 38561.) ARB released a draft of the plan this month.

Complying with the AB 32 requirement that it determine by January 1, 2008 what the emissions level was in 1990, ARB determined that California emitted 427 metric tons of carbon dioxide equivalents in 1990. In order to reduce emission to this level by 2020, the draft Scoping Plan says that the state must reduce emissions by 169 million metric tons of carbon dioxide equivalents. This means reducing per capita emissions from 14 to 10 tons per year per person. Of the 160 million metric tons of carbon dioxide equivalents, the ARB only expect 2 million metric tons, or about 1.2 percent of the overall reduction, to come from local government action.

The draft plan suggests local governments can achieve this with two strategies. First, local governments can do things like influence the energy used in their buildings, recycle, and reduce water consumption. Second, local government can connect transportation to land use, using models such as Sacramento’s Blueprint strategy to adopt sustainable growth scenarios.

While local governments are likely tempted to breath a sigh of relief at this manageable assignment, they continue to hold their breath, waiting until the plan is finalized and the obligation is balanced logically between all cities and counties.

What’s Next

So, what can we anticipate for the next six months? At the state level, we will almost certainly see the ARB finalize and adopt the scoping plan. At the local level, CEQA documents will expand to add GHG emission discussion and mitigation.

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.