By Leslie Z. Walker
San Francisco Superior Court enjoined the implementation of the Air Resources Board’s Climate Change Scoping Plan, finding the alternatives analysis and public review process violated both CEQA and the Air Resources Board’s certified regulatory program.
The Scoping Plan is the strategy for achieving the Greenhouse Gas (“GHG”) reductions mandated by the Global Warming Solutions Act of 2006 (Health & Saf. Code, 38500 et seq., “AB 32”). AB 32 directed the Air Resources Board (“ARB”) to prepare and approve a scoping plan for achieving the maximum technologically feasible and cost-effective reductions in GHG emissions by 2020. (Health & Saf. Code, § 38561.) ARB adopted the Climate Change Scoping Plan including the functional equivalent document (“FED”) on December 12, 2008. Petitioners challenged both the Scoping Plan and the FED, claiming the former violated AB 32 and the latter violated CEQA and ARB’s certified regulatory program (Cal. Code Regs., tit. 17, 60005-60007). The court found the plan violated CEQA and the certified regulatory program, but not AB 32.
Functional equivalent documents are environmental review documents prepared pursuant to state regulatory programs certified by the Natural Resources Agency. (Pub. Resources Code, § 21080.5; CEQA Guidelines, § 15250-15253.) The documents are “functionally equivalent” to EIRs. When preparing that document, the agency must still comply with other provisions of CEQA such as consideration of alternatives and responding to comments. The same standard of review is applicable to a equivalent document as is applicable to a CEQA document. ARB characterized its FED as a first-tier document. Accordingly, the document is reviewed as a program-level document.
Petitioners first claimed that the FED’s discussion contained insufficient detail. They claimed ARB improperly deferred analysis of some impacts and contained an overly broad, conclusory, and contradictory discussion of cumulative impacts. The Court found that under the standards applicable to a program level analysis, ARB had sufficiently identified and analyzed the potential adverse impacts of the measures proposed by the Scoping Plan.
Petitioners next claimed that ARB’s discussion of project alternatives was insufficient. The FED contained discussion of five alternatives, including the no project alternative. ARB concluded that it expected the environmental impacts of all alternatives would be similar to those of the proposed measures identified in the Scoping Plan, but failed to provide any factual support for that conclusion. The court explained that while a program-level EIR need not be as detailed as a project-level EIR, it must still provide the public with a clear indication based on factual analysis as to why it chose the Scoping Plan. The court concluded ARB failed to proceed in a manner prescribed by law by failing to adequately describe and analyze project alternatives.
Finally, petitioners claimed ARB violated both CEQA and the certified regulatory program by approving the Scoping Plan prior to responding to written comments. The court agreed, finding ARB failed to comply with the information requirement of CEQA and ARB’s certified regulatory program without first completing the environmental review process.
The court ordered ARB to set aside its certification of the FED and enjoin any further implementation of the Scoping Plan until ARB complied with all of its obligations under the ARB’s certified regulatory program and CEQA. As a trial court case, the decision does not set precedent but does delay implementation of the Scoping Plan until ARB complies with the court’s order.
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.