By Michelle Engel

The Air Resources Board (“ARB” or “Board”) has their hands full. A question and answer session, with more questions than answers, commenced on December 9, when the ARB Staff Project Team held their second public meeting to discuss the development of recommended approaches for setting thresholds for greenhouse gases (“GHG”) under the California Environmental Quality Act (“CEQA”).   The task assigned to ARB has been criticized as being “impossible to achieve” given the lack of experience the ARB Staff has with local government and in dealing with CEQA.

The Preliminary Draft Staff Proposal: Recommended Approaches for Setting Interim Significant Thresholds for Greenhouse Gases under CEQA (“Initial Proposal”), was released in October 2008, which we analyzed in “ARB Guidance on CEQA Thresholds: Not Every Bit Counts, and CEQA Exemptions Apply.” The public was able to digest the information provided in the Initial Proposal and submit comments and suggestions to the ARB which were discussed during the December 9 workshop. Public concern centers on:

  • Impacts on local agencies
  • Inconsistencies with current CEQA process and terminology
  • The potential for a double-counting standard
  • Threshold per sector approach vs. threshold per project approach
  • Quantitative outweighing qualitative

Impacts on Local Agencies

As the Initial Proposal stands now, local agencies will be responsible for developing their own methods for identifying thresholds of significance for projects within their jurisdiction. The principle objections to this approach are that the Initial Proposal currently only provides basic guidelines, and the methodology and analysis to implement those guidelines are missing.   Essentially, by ARB providing local agencies with basic quantitative guidelines to follow when setting thresholds, a local agency is potentially set-up to take the path of least resistance and follow the guidelines word-for-word, or number-by-number; essentially utilizing the guidelines as the official rule to follow rather than just a guideline. This poses a major challenge for development in California because not every project can be defined by one form of measurement (i.e. Tier I or Tier II, 7,000 MTCO2e/year or 14,000 MTCO2e/year) when it comes to GHG emissions. Additionally, most local agencies lack the funds available to research and implement the guidelines being provided by ARB. 

Inconsistencies with Current CEQA Process and Terminology

The Initial Proposal contains language and draft flowcharts designed to assist local governments in determining the impacts a project may have on climate change. Concerns arose regarding the language inconsistencies contained in the Initial Proposal compared with the language in the CEQA Guidelines. Examples include categories of exemption, levels of significance, and the requirement of CEQA documents for certain impact reducing plans, etc.   Public comment urged ARB to pay careful attention to what they are documenting in their proposal to ensure that it conforms to the language of existing law. 

The Potential for a Double-Counting Standard

The potential for double-counting when taking data in consideration for analysis, specifically for determining certain levels of significance, like transportation trips, the amount of people living in one particular area, etc., is typical and most agencies have methods in place to minimize it. However, when it comes to correcting double-counting errors of GHG emissions under CEQA, the public remains concerned that the lack of information available in the Initial Proposal will lead to many mitigation inconsistencies throughout the state, ultimately defeating the purpose of the overall goal. When ARB was asked if they took the double-counting factor into consideration when developing their guidance documents, the answer was that they were unsure, and that from what they know “double-counting already exists in the transportation sector so double-mitigation is already occurring.”

 Threshold Per Sector Approach vs. Threshold Per Project Approach

The Initial Proposal calls for a sector-specific threshold approach. This would require each project to have different thresholds for the variety of sectors involved in the project (i.e., worker transportation, electricity used, gas used, concrete use, disposal, etc.). Suggesting local agencies develop their own specific thresholds for each possible sector is a complicated task. Without providing methods by which to achieve those goals, local agencies will likely be left to utilize the quantitative system provided in the Initial Proposal for project-wide thresholds potentially leading to discrepancies. 

Quantitative Outweighing Qualitative

ARB is recommending a quantitative threshold of 7,000 metric tons of CO2 equivalent per year (MTCO2e/year) for industrial projects and reliance on the California Energy Commission’s (CEC) Tier II[1] Energy Efficiency standards for residential/commercial projects. The suggested data provided in the Initial Proposal has generated criticism mainly due to the lack of qualitative data available along with the numerical data. In addition, commenter’s remain concerned over the method by which these quantitative thresholds were established.

Upcoming Events

The efforts put into the Initial Proposal by ARB and all of the commenter’s and public officials who have provided their input and support has not gone unrecognized. The task at hand is not an easy one, and it is not close to being over. ARB will continue to accept public comments through December 16, and promised to post analytical data requested by commenters prior to December 19, at which time ARB will be releasing an updated draft recommendation proposal. A third public workshop is subsequently scheduled to take place on January 6.  

Abbott & Kindermann, LLP will continue to keep you appraised as developments occur.

Michelle Engel is a paralegal with 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.

[1]Tier II – 35 percent reduction in the residential building’s combined space heating, space cooling, and water heating energy and 40 percent reduction in the residential building’s air conditioning energy compared to current Title 24 Standards.