CEQA and Greenhouse Gas Regulations Moving Towards Adoption

Regulations for the analysis of greenhouse gases (GHGs) under the California Environmental Quality Act (CEQA) have been finalized and are moving towards adoption. The final amendments to the State CEQA Guidelines have been released and are out for public comment until November 10, 2009.

Under State law (SB 97), the Guidelines should be adopted and in effect on or before January 1, 2010. Local air districts also are finalizing their CEQA guidance for analysis of GHGs. Both the Bay Area Air Quality Management District (BAAQMD) and the San Joaquin Valley Air Pollution Control District (SJVAPCD) have issued their final draft guidance documents which are scheduled for adoption in November.

Given these imminent regulations, the question is no longer whether GHGs should be analyzed under CEQA. The question is nowhow to analyze these impacts. The State CEQA Guidelines establish the parameters for analysis, but give agencies discretion to determine if the GHG emissions of a project are significant and require mitigation. The State regulations specifically rejected requests to establish a statewide standard of significance for GHG emissions. In contrast, the air district regulations propose specific standards to determine significance. Different air districts in the State have proposed different significance standards. The proposed standards include:

1. a quantification threshold (ex. project emissions over 10,000 metric tons of carbon dioxide equivalent (CO2eq) a year are significant);
2. project conformance with performance standards to reduce GHGs (ex. project which implements performance standards to reduce GHGs by a certain percentage has less than significant impact); and
3. significance determined by compliance with agency climate action or GHG reduction plan (ex. project that is consistent with local Climate Action Plan has less than significant impact).

The challenging question now facing agencies is whether or not they will use the air districts’ standard of significance for GHG analysis. Although agencies have discretion to establish their own significance standards, they must be based on substantial evidence. So, if an agency chooses a standard different from that adopted by the local air district, the agency must develop a factual record to support its threshold. In light of the air district’s expertise and analysis supporting their thresholds, an agency’s alternative threshold should be based on expert, scientific evidence. Since various thresholds are being proposed, we are recommending to our clients that they consider adoption of a local climate action or GHG reduction plan to provide some certainty in this area and eliminate the need to analyze this issue on a project-by-project basis. Consistency with such a local plan is recognized under the State CEQA Guidelines and all proposed air district regulations as a means for determining the significance of GHGs under CEQA (see Option 3 above). A local plan allows the agency to determine what reduction level and measures are acceptable to its community. However, in order to serve its CEQA function, the plan must comply with standards established under state law, and should comply with the air district’s regulations in order to increase its defensibility.
The CEQA and GHG issue is moving to the next stage. It is important for agencies to be proactive and address this issue. There are opportunities for agencies to seize control and reduce uncertainty. However, challenges will remain since many groups are advocating the need for agencies to require aggressive reductions of GHGs and adopt all feasible mitigation measures. Careful consideration of the legal issues involved in these decisions is critical to ensure that an agency’s approach can be effective and withstand challenge. We are advising our clients on the development of strategies to effectuate the agency’s policy goals, within the parameters of the law, and reduce the time and expense of CEQA analysis relating to GHGs.

Meyers Nave’s Climate Change and Green Initiatives Group is dedicated to providing advice on all aspects of greenhouse gas regulation as it applies to our clients including AB 32, CEQA compliance, green building ordinances, climate action plans and more. If you have questions regarding any of these issues, please contact Tim Cremin.