Alert: OPR Sends Proposed CEQA Guideline Amendments to Resources Agency
On Monday April 13, 2009 the Governor's Office of Planning and Research ("OPR") released its proposed amendments to the California Environmental Quality Act ("CEQA") Guidelines in order to address the potential effects of Greenhouse Gas ("GHG") emissions. Pursuant to the legislative requirements, these Proposed Amendments have been sent to the Natural Resources Agency for review and final approval by January 1, 2010.
This newly released proposal follows a lengthy review process by OPR that started after the legislature amended CEQA in late 2007 to require the agencies to draft guidelines for the mitigation of GHG emissions. OPR first issued a Technical Advisory last summer which provided agencies with some preliminary guidance on how to address GHG emissions in CEQA documents. After receiving substantial public comment the agency released a preliminary draft in January of this year and held a number of public hearings to take input on that draft. The Proposed Amendments have been altered somewhat from the preliminary draft as a result of those comments.
As a whole, the Proposed Amendments do not significantly alter the traditional methods utilized under CEQA to determine the impacts of a project. The changes emphasize that the same processes apply to the consideration of GHGs but the Amendments add some specific guidance on approaches that recognize the more global nature of GHG emissions. For example, in determining the significance of impacts from GHGs the Proposed Amendments require the agency to quantify the emissions from the project, and evaluate whether the project's emissions will be greater than the existing environmental setting, whether it will exceed any significance threshold adopted by the public agency, and whether it complies with any regulations or requirements adopted by state, regional or local plans to reduce GHGs. Although the California Air Resources Board is developing a recommended approach to setting thresholds of significance from GHG emissions, it is still the local agencies' decision whether and what threshold to adopt and the Proposed Amendments only add that a lead agency may consider thresholds previously adopted by other public agencies so long as they are supported by substantial evidence.
Similarly, the Proposed Amendments emphasize that, consistent with the existing requirement that project impacts be mitigated, impacts from GHGs must be mitigated if feasible and it provides a list of possible measures that could be adopted such as on-site reductions, offsets and even sequestration of carbon. It also considers incorporation of specific measures or policies in a previously adopted ordinance or regulation as acceptable mitigation.
Along with new language in various sections which allow for the reliance on other statewide, regional or local plans relating to GHG emissions, the Proposed Amendments add an entire section on "Tiering and Streamlining the Analysis of GHG Emissions" to further enable agencies to manage the effects of GHGs at a programmatic level. Many believe that a project-specific approach to managing GHGs will not be effective and these provisions should aid agencies seeking to manage the emissions at a broader level. The section includes a reference to the possible CEQA exemptions and streamlining provisions set out in Senate Bill 375.
The most significant alteration between the preliminary draft and the Proposed Amendments, an item of particular interest to infill developers, is the change to the transportation and traffic questions in Appendix G (the "Initial Study Checklist"). The preliminary draft had proposed completely eliminating the question about whether the project would cause an intersection or roadway to exceed the Level of Service ("LOS") standard established by the local agency. This standard has often been extremely problematic for those seeking to create denser developments and many hoped a change would ease the approval process for infill projects. The Proposed Amendments, however, back-off this approach and instead simply amend the question so that it now asks more generally whether the project will conflict with an applicable "congestion management program" which may include an LOS analysis or other travel demand standards. This was important to local agencies who heavily rely on the LOS analysis in their planning process. The section also now adds the consideration of more than just vehicular traffic by including impacts on "intersections, streets, highways and freeways, pedestrian and bicycle paths, and mass transit."
There will be further opportunity to comment on the Proposed Amendments as the Resource Agency begins the formal rulemaking process.
Farella Braun + Martel assists clients in getting speedy and appropriate CEQA review of their projects and is closely monitoring the manner in which new climate change-related statutes and regulations, such as AB 32 and SB 375, will impact project development. For more information, please contact Steve Vettel at 415.954.4400.