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California Set to Require Analysis of Greenhouse Gas Emissions During Environmental Review of Projects; Federal Action Also Anticipated

Beveridge & Diamond, P.C., January 15, 2010

Greenhouse gas emissions are on their way to becoming a formal component of California’s environmental review of new projects under the California Environmental Quality Act (“CEQA”), and may also soon be incorporated into Federal National Environmental Policy Act (“NEPA”) reviews. 

On December 30, 2009, the California Natural Resources Agency adopted amendments to the CEQA guidelines that specifically address and incorporate the assessment of proposed state agency actions’ potential emissions of greenhouse gases (“GHGs”).  The Natural Resources Agency was required under a 2007 state law to finalize and adopt CEQA GHG guidelines by Jan. 1, 2010.  The amended guidelines will become effective thirty days after the Office of Administrative Law completes its review and submits them to the Secretary of State for inclusion in the California Code of Regulations.  The guidelines are intended to provide clarity to various industry groups, developers, environmentalists, and state agencies over how GHG emissions should be handled in CEQA reviews.  The CEQA GHG guidelines are also considered a key complementary policy to AB 32, which requires California to reduce GHG emissions to 1990 levels by 2020.

California’s amended guidelines add several sections or subsections devoted entirely to the assessment and mitigation of the impacts of GHGs, which are defined to include carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride.

Section 15064.4, entitled “Determining the Significance of Impacts from Greenhouse Gas Emissions,” requires that a “lead agency should 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 will have discretion to determine the model or methodology used to quantify GHG emissions or to rely on a performance-based standard.  The guidelines provide that an agency should consider a number of factors, including whether the project emissions exceed a threshold of significance applicable to the project and whether the project complies with local, state, and regional plans to reduce GHG emissions. 

Subsection 15126.4(c), entitled “Mitigation Measures Related to Greenhouse Gas Emissions,” mandates that agencies consider “feasible means, supported by substantial evidence and subject to monitoring or reporting, of mitigating” GHG emissions.  Such measures could include emission reductions related to project design, off-site measures such as offsets, GHG sequestration, and project specific measures that are part of any long-range development plan to reduce GHGs. 

Section 15183.5 sets forth guidance for “Tiering and Streamlining the Analysis of [GHG] Emissions.”  This provision allows agencies to analyze and mitigate GHG impacts at a programmatic level with later project-specific Environmental Impact Reviews (EIR) referencing and incorporating the results of the programmatic review.  Agencies may also design programs for the reduction of GHGs, which could then be used in later project-specific reviews.

Notably, subsection 15183.5(c) addressing “Special Situations,” indicates that certain priority transit and other types of priority projects (as defined in the California Public Resources Code) “need not analyze global warming impacts resulting from cars and light duty trucks.”  

The CEQA guidelines also include language that further requires integration of GHG impacts throughout the environmental planning and review process.  For example:

  • When examining the cumulative effects of a project to determine whether the project requires an EIR, the amendments instruct that, if the impacts, including GHG emissions, are included in a previously approved plan or mitigation program that will reduce the effects, then an EIR is not necessary. 
  • In section 15093, regarding "Overriding Considerations," which requires an agency to balance the benefits of a project against unavoidable risks, CEQA has added “region-wide or statewide environmental benefits” as one of the considerations.  This reflects the notion that GHG impacts tend to be diffuse and not localized.
  • CEQA now requires that an agency consider the effect of development on areas susceptible to hazardous conditions, such as flood plains and coast lines.  This “Consideration and Discussion of Significant Environmental Impacts” is a provision that incorporates adaptive management into the guidelines.  It also reflects the notion that climate change will affect coast lines and increase the likelihood of flooding.
  • Section 15130(b)(1).B, which addresses the discussion of cumulative impacts in an EIR or related document, now requires an assessment of projected impacts relevant to any general or regional plan, including a regional transportation plan or plan for reducing GHG emissions.
  • The guidelines indicate that the Natural Resource Agency will require consideration of discrete and cumulative GHG impacts, as well as an assessment of consistency with overall regional planning goals as part of an EIR.

Federal Action Also Anticipated

Given California’s influence on federal environmental law and the parallels between CEQA and NEPA, California’s regulations are likely to influence any potential NEPA guidelines for GHGs that may be issued by the White House Council on Environmental Quality (“CEQ”), which administers NEPA.

CEQ action may be forthcoming.  Nancy Sutley, Chairperson of the White House Council on Environmental Quality (CEQ), sent a letter to Senators James Inhofe (R-OK) and John Barrasso (R-WY) stating that CEQ “sees no basis for excluding" GHG emissions from consideration in reviews under NEPA, and that CEQ “believes that it is appropriate and necessary to consider the impact” of federal actions on GHG emissions and the impact of climate change on federal projects.  The December 29, 2009 letter was sent in response to Inhofe’s and Barrasso’s concern that regulating GHGs under NEPA would be ill-advised in the absence of federal climate change legislation. 

The amended California guidelines are available on the California Natural Resources Agency’s website.  See http://ceres.ca.gov/ceqa/docs/
Adopted_Text_of_SB97_CEQA_Guidelines_Amendments.pdf

For further information please contact Fred Wagner at (202) 789-6041 or fwagner@bdlaw.com; Nico W. van Aelstyn at (415) 262-4008 or NvanAelstyn@bdlaw.com; Patrick Jacobi at (202) 789-6064 or pjacobi@bdlaw.com; or Anne Finken at (202) 789-6007 or afinken@bdlaw.com