Alert: The Formal Comment Period for the Climate Change-Related Amendments to the CEQA Guidelines is Now Open

7/15/2009 Articles

The California Natural Resources Agency ("Agency")  has begun the formal rulemaking process for amending the California Environmental Quality Act ("CEQA") Guidelines to provide direction on the consideration of greenhouse gas emissions. This action began with the Office of Planning and Research ("OPR"), which drafted a set of proposed amendments for consideration by the Agency in April. OPR's process included a number of opportunities for public comment, but the Agency has now initiated the formal rulemaking process by opening the public comment period. Commencing on July 3rd, the Agency will begin to take written comments on the proposed amendments and will hold two public hearings prior to the close of the comment period on August 20, 2009.

The version of the amendments released by the Agency contains no modification to the text of the Guidelines sent by OPR, although some revisions were made to the notes which follow each section to include additional supporting case law and cross-references. The substantive thoughts of the Resources Agency are found in the "Initial Statement of Reasons for Regulatory Action," which goes through each of the sections to which the Agency is proposing changes, justifies the action and responds to specific comments made during the OPR process that either were, or were not, incorporated into the proposed rulemaking.

For example, in the newly added section on determining the significance of impacts from greenhouse gas emissions, the Statement of Reasons explains that one of the rationales for adding this section was to clarify when a project's impacts will be considered cumulatively significant. The Agency reviews some recent actions by lead agencies that had concluded project's emissions were not cumulatively significant because the project was not inconsistent with the "early action items" that had been proposed by the Air Resources Board under AB 32. The Agency notes that this reasoning is faulty because the early action items were not designed to cover all types of projects or to be a comprehensive look at cumulative impacts and thus the Agency wanted to clarify that cumulative impact findings which rely on broader plans or regulations need to be truly applicable and contain meaningful analysis.

Numerous portions of the Statement of Reasons emphasize that it is the view of OPR and the Agency that "the effects of GHG emissions resulting from individual projects are best addressed and mitigated at a programmatic level," and the different amendments that promote this view are emphasized. This can be seen in the sections on cumulative impacts, tiering, and even in the changes to the Guidelines section on statements of overriding considerations.  In the discussion on the changes to the section on overriding considerations, the Agency states that it is seeking to discourage "purely local interests from dominating consideration of a project" and instead allow agencies to consider broader region and statewide benefits of a project.

For projects that are currently undergoing review under the existing Guidelines, the comments by the Agency in the Statement of Reasons might also provide some insight into the sort of conclusions on climate change impacts that the Agency considers to be inappropriate under the current regulatory language and case law. While the Statement of Reasons is not legally binding, statements by the Agency would likely be influential with lead agencies and possibly with a court. For example, in the discussion on changes to section 15130, the Agency flatly rejects the approach taken by some lead agencies to avoid analysis by concluding that no one project could be responsible for climate change.

The Agency will hold two public hearings before the close of the public comment period. The first will be on August 18, 2009 in Sacramento, and the second will be on August 20, 2009 in Los Angeles.  Participation in the comment period may be important to preserve rights to challenge the amendments in court.  After the close of the public comment period, the Agency will issue a final Statement of Reasons that responds to the comments received. This can be expected during the fall. For further analysis of the proposed changes to the Guidelines see our April 2009 client alert: OPR Sends Proposed CEQA Guideline Amendment to Resources Agency.

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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.