Environmentally Sound

Recent legal developments have provided some guidance on the difficult question of how to analyze the environmental impacts of greenhouse gases (GHGs) for land use projects under the California Environmental Quality Act. The issue first reached prominence in late 2006 after the adoption of AB 32 — The California Global Warming Solutions Act — and relates to state efforts to reduce GHGs to combat global warming. However, legal guidance has taken a while to develop. State regulations were adopted at the very end of last year. Some local air quality districts have recently adopted or are considering adoption of regulations and guidance. There have been no court of appeal decisions on the issue and trial court decisions are not uniform. In this evolving legal area, only one thing has become clear — the GHG impacts of land use projects should be analyzed under CEQA. The challenging issue is how this analysis should be done. The answer involves an assessment of options, legal risks and policy choices by public agencies. Since CEQA is commonly used as the basis for challenging land use projects, the GHG analysis will be a critical component of the legal defensibility of projects.

State CEQA regulations

In 2007, the state Legislature directed the State Office of Planning & Research to develop regulations for the analysis and mitigation of GHGs under CEQA (Senate Bill 97). That process was completed on Dec. 30, 2009, when the Natural Resources Agency adopted revisions to the State CEQA Guidelines (Title 14, California Administrative Code §15000 et.seq.) — these amendments will become effective March 18. The main issue in the development of the regulations was whether the state would establish a statewide uniform standard for GHG analysis or leave discretion to local agencies. The State Air Resources Board (the agency implementing AB 32) initially proposed statewide standards for determining the significance of GHG impacts under CEQA, but that approach was not followed. The adopted regulations landed firmly on the side of leaving local agencies the discretion to determine the methodology and significance standard that would apply to GHG impacts.