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California Court Rules Land-Use Decisions Must Address Global Warming

Beveridge & Diamond, P.C., August 15, 2008

On August 8, 2008, a California court rejected an environmental review prepared for a large proposed development, holding that the California Environmental Quality Act (CEQA) required a more complete accounting of the climate change effects of the proposed land use project.  Center for Biological Diversity v. City of Desert Hot Springs, Cal. Super. Ct., No. RIC464585, 8/6/08).  Riverside Superior Court Judge Harold Hopp rejected a plan to build a 1,776-acre development that would include 2,600 homes, retail and commercial space, a 400-room hotel, and amphitheater, and two golf courses near Joshua Tree National Park in Southern California.  The court ruled that the project’s environmental analysis violated CEQA because it did not adequately consider the project’s climate change effects.  The court concluded that the California Legislature, in enacting the Global Warming Solutions Act of 2006 (AB 32) has “recognized the importance of combating global warming.” The court further found that the project proponents “failed to make a meaningful attempt to determine the project’s effect upon global warming before determining that any such analysis would be speculative,” but rejected the environmental groups’ challenge to the report’s analysis of the development’s impact on wild life corridors and water supplies.  A link to the opinion can be accessed here.

The lawsuit, filed by the Center for Biological Diversity and the Sierra Club, is one two recent victories for environmental groups seeking to use CEQA to curb greenhouse gas emissions from new developments.  The earlier ruling was issued by a Sacramento superior court last month, after a community group sued the California Department of Transportation for failing to consider climate change effects in planning for 13 miles of high-occupancy vehicle lanes in the city.  To view that opinion, click here.  Last year the California Legislature addressed the issue by passing SB 97, which affirms the use of CEQA to require planners to consider climate change.  More recently, the office of Governor Arnold Schwarzenegger (R) issued technical guidelines on how cities and counties can calculate and reduce GHGs.  See http://opr.ca.gov/ceqa/pdfs/SB_97_bill_
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By way of these lawsuits, the courts are to some extent shaping climate change policy while state regulatory agencies act more slowly.  Under a 2007 budget bill, the California Office of Planning and Research (OPR) is required to draft and adopt statewide CEQA guidelines, including thresholds, i.e. the amount of GHG emissions from a new project or development that would trigger the need for the developer to mitigate those emissions under CEQA.  However, these guidelines are not scheduled for adoption until 2010.  Meanwhile, the South Coast Air Quality Management District (SCAQMD) recently called on the California Air Resources Board (CARB) to include CEQA guidelines for climate change (including GHG emissions thresholds) in the AB 32 Scoping Plan.  The Scoping Plan will provide the “blueprint” for implementation of California’s sweeping climate change regulatory program and must to be adopted by year-end.  SCAQMD also is working with the California Air Pollution Control Officers Association (CAPCOA) to develop GHG emission threshold CEQA guidance, though it would not be binding.  Until these regulatory guidelines are in place, litigants can continue to make climate change policy by bringing CEQA challenges and forcing the courts to issue decisions that effectively fill large gaps in California’s evolving climate change laws.

For a printable PDF of this article, please click here.

For more information, please contact Nico van Aelstyn at (415) 262-4008, nvanaelstyn@bdlaw.com, or Suzanne Piluso at (415) 262-4013, spiluso@bdlaw.com.