Sandi L. Nichols
Environmental & Natural Resources
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Environmental & Natural Resources
Allen Matkins, founded in 1977, is a California-based law firm with approximately 220 attorneys in four major metropolitan areas of California: Los Angeles, Orange County, San Francisco and San Diego. The firm's core specialties include real estate, real estate and commercial finance, bankruptcy and creditors' rights, construction, land use, natural resources, environmental, corporate and securities, intellectual property, joint ventures, taxation, employment and labor law, and dispute resolution and litigation in all these matters. More...
Who is affected? Anyone who prepares, reviews, or relies upon CEQA documents, including: project developers - professional planners - land use officials - CEQA practitioners
On June 19, the Governor's Office of Planning and Research (OPR) announced its publication of a technical advisory on how lead agencies should address the impacts of a project's greenhouse gas (GHG) emissions on climate change in documents prepared under the California Environmental Quality Act (CEQA). OPR developed this Technical Advisory in cooperation with the California Resources Agency, the California Environmental Protection Agency, and the California Air Resources Board (ARB). View the Technical Advisory here.
OPR Director Cynthia Bryant, and State Clearinghouse Director and CEQA-GHG Project Manager Terry Roberts informed stakeholders on a June 19 conference call that the Technical Advisory is intended to provide informal advice for addressing analysis of GHG emissions in CEQA documents only until OPR has completed the formal process of developing draft CEQA Guidelines "for the mitigation of greenhouse gas emissions or the effects of greenhouse gas emissions," as required by Senate Bill 97. As explained by the OPR representatives, the Technical Advisory does not contain any specifics regarding expected language in the forthcoming formal guidelines, but does provide a recommended methodology that lead agencies should follow to comply with CEQA when assessing climate change impacts.
OPR's Recommended Approach:
1. Identify GHG emissions. Lead agencies should make a good faith effort, based upon available information, to estimate, model or calculate the amount of GHG emissions from a project, including emissions associated with vehicular traffic, energy consumption, water usage and construction activities. The Technical Advisory offers possible models for use by the lead agencies in calculating GHG emissions.
2. Determine significance. Direct, indirect and cumulative climate change impacts should be assessed. The assessment would include, among other things, a presentation of the existing environmental setting without the project, and project-specific GHG emissions (e.g., transportation impacts). OPR acknowledges that there is currently no official regulatory guidance on how to assess the significance of a climate change-related impact, but notes that the CEQA lead agency has discretion to make this determination and should do so. The advisory appears to discourage a lead agency from concluding that GHG impacts are "too speculative" for evaluation, but does not expressly preclude lead agencies from doing so on a project-specific basis. OPR also acknowledges that not every individual project that emits GHGs must necessarily be found to contribute to a significant cumulative impact, noting that a "less than significant" cumulative impact may be accomplished by incorporating mitigation measures to reduce GHG emissions into the project.
3. Mitigate impacts. Consistent with current CEQA requirements, the Technical Advisory states that, if a significant impact is identified, the lead agency must evaluate and impose feasible alternatives or mitigation measures to avoid the impact or reduce GHG emissions to a "less than significant" level, or adopt a Statement of Overriding Considerations to approve a project for which certain impacts are "unavoidable." Mitigation measures may include, for example, alternative project designs or locations that conserve energy and water; measures that reduce vehicle miles traveled, or contribute to established regional mitigation strategies; and measures that sequester carbon to offset project-related GHG emissions. The Technical Advisory offers examples of GHG reduction measures that relate to land use and transportation, urban forestry, green buildings, energy conservation, reduction of vehicle miles traveled and reduction of solid waste. OPR also encourages local governments to address GHG emissions on a programmatic level by taking a broad policy approach to addressing climate change through jurisdiction-wide planning strategies, such as general plans and regional transportation plans.
OPR has asked ARB technical staff to recommend a method for setting a threshold of significance for GHG emissions, and to identify a range of feasible options. OPR intends to release a preliminary draft of the CEQA Guidelines amendments for public review and comment this fall, with the goal of delivering its proposed new Guidelines to the Resources Agency in January 2009, six months ahead of the July 1, 2009 deadline.
Allen Matkins has extensive experience in preparing, reviewing and defending CEQA documentation for development and land use planning projects throughout the state. We encourage you to contact us to discuss how the OPR's latest technical advisory may affect your project or business.