Alert: Office of Planning and Research Releases Technical Advisory on CEQA and Climate Change
On June 19th, 2008, the Governor's Office of Planning and Research (OPR) released its Technical Advisory on the California Environmental Quality Act (CEQA) and Climate Change. CEQA is the state law that requires environmental impact reviews for all discretionary development projects and land use plans that have the potential to impact the physical environment and requires agencies to impose feasible measures to mitigate any significant environmental effects.
In 2007, Senate Bill 97 amended CEQA to confirm that Greenhouse Gas (GHG) emissions must be considered in CEQA analyses and directed OPR to amend the CEQA Guidelines by January 1, 2010 to address climate change impacts. Since agencies are already struggling with this issue, OPR (in cooperation with the California Resources Agency, Cal/EPA and the Air Resources Board) issued this brief "Technical Advisory" to provide preliminary advice to local and state agencies.
At this time the principal issue of uncertainty is how to identify the threshold of significance for determining whether a project will have a significant impact due to its GHG emissions. The Advisory does little to resolve that question. OPR has asked the Air Resources Board to "recommend a method for setting [significance] thresholds which will encourage consistency and uniformity" statewide. Until that time, however, OPR provides limited guidance on how agencies should proceed. The Advisory contains a section on determining significance which states that "individual lead agencies may undertake a project-by-project analysis" until a consistent approach is determined via regulation. It also provides that "[a]lthough climate change is ultimately a cumulative impact, not every individual project that emits GHGs must necessarily be found to contribute to a significant cumulative impact on the environment," which does help somewhat in deciding how smaller projects with few direct emissions should be treated.
Recommended Three-Step Process
In conformity with the process required for other types of impacts, the Advisory recommends a three-step process. First, the agency should calculate the GHG emissions from the project using the best available information. It recommends including emissions associated with "vehicular traffic, energy consumption, water usage and construction activities." Since estimating GHG emissions is one of the other key hurdles that cities and counties are grappling with now, Attachment 2 to the Advisory contains a list of technical resources and modeling tools which can be used as aids in this process.
Second, the agency should determine whether the project's GHG emissions are significant; directly, indirectly or cumulatively. Finally, the agency should impose any feasible mitigation measures that are necessary to reduce a project's GHG emissions to a less than significant level. Attachment 3 to the Advisory contains a "preliminary menu" of such measures, although it is not intended to be "exhaustive or prescriptive." Measures include such activities as the construction of LEED-certified buildings or other green building techniques, reduction in vehicle miles traveled, preservation or replacement of onsite trees, and incentive programs that increase recycling and reduce generation of solid waste by residents.
In general, the Advisory encourages tackling climate change through land use planning at the local and regional level, rather than extensive project-specific analysis. This includes encouraging transit oriented, low water and energy use developments. It notes that in some cases GHG emission reductions are only feasible or effective when done at a program, rather than project level basis. Attachment 1 to the Advisory contain lists of other resources that provide information on climate change, including other agencies, references to laws and regulations and links to a number of reports.
In the future watch for public workshops where OPR will be accepting public comment on the appropriate revisions to the CEQA Guidelines. OPR intends to release a draft of the amendments to the CEQA Guidelines this fall, with the hope that it will be able to deliver proposed Guidelines to the Resources Agency in January 2009.
Download the Technical Advisory at http://opr.ca.gov/docs/june08-ceqa.pdf
Farella Braun + Martel has advised a number of clients on the treatment of GHG emissions in CEQA documents and is closely monitoring the development of Climate Change-related statutes and regulations.
