Only weeks after one round of relatively noncontroversial updates to the California Environmental Quality Act Guidelines officially took effect, the Governor's Office of Planning and Research has been charged with a far more ambitious task: amending the Guidelines to account for global warming.
The agency is apparently putting together a schedule and process, and the first meetings with interested parties could occur before the end of the year. The process of revising CEQA Guidelines is typically laborious and contentious. This time, the process may be overtly political, as well.
Officials at the Office of Planning and Research (OPR) said they are not authorized to discuss this round of Guidelines revisions and directed CP&DR inquires to Gov. Schwarzenegger's press office. A spokesman for the governor said the process is still being worked out. He was unable to answer questions about timing, who would be involved and issues that would be addressed.
For two months this summer, Republican lawmakers blocked adoption of the state budget in part because of concerns about whether and how global warming should be considered an issue for CEQA purposes. Manufacturing, development, petroleum and other interests urged lawmakers to keep global warming issues out of environmental reviews for land use plans, transportation plans, development projects and anything else that could be a "project" under CEQA. Their concerns stemmed from recent litigation over the lack of global warming considerations in environmental impact reports, including a suit (since settled) that Attorney General Jerry Brown filed over San Bernardino County's updated general plan (see CP&DR, July 2007; In Brief, September 2007). As part of the budget settlement, the Legislature approved SB 97 (Dutton), which exempts transportation and flood control projects funded by the 2006 state bonds from global warming considerations.
However, the bill concedes to environmentalists on the primary point: global warming is a CEQA issue. The bill directs OPR to prepare "guidelines for the mitigation of greenhouse gas emissions or the effects of greenhouse gas emissions." The bill gives OPR a July 1, 2009, deadline, and mandates that the Resources Agency adopt the Guidelines by January 1, 2010. The legislation further requires OPR to update the Guidelines periodically based on state Air Resources Board (ARB) information and criteria.
Russell Lowery, chief of staff for SB 97's author, Sen. Bob Dutton (R-Rancho Cucamonga) said the Guideline amendments are necessary because of today's overwhelming uncertainty about the issue.
"The sooner the Guidelines are out and ready, the sooner judges will have something on which to base a decision," Lowery said. "[Developers] can deal with regulations. What they can't deal with is uncertainty in litigation."
The exact language of SB 97 — specifically the phrase "guidelines for the mitigation of greenhouse gas emissions" — does raise an issue, because CEQA and the Guidelines have never previously prescribed mitigation.
Besides dealing with potential mitigation measures, the new Guidelines will likely need to address standards of significance, and a project's baseline for evaluation. The state's greenhouse gas reduction law (last year's AB 32) speaks to reducing emissions to the 1990 level by 2020. Thus, it is conceivable that 1990 should serve as the baseline for environmental reviews, said Terry Rivasplata, a former state CEQA clearinghouse director now with Jones & Stokes.
"Every project contributes just a little bit to this global problem," Rivasplata said. "It's awfully hard to argue that a project won't have an impact." But does that mean, he asked rhetorically, that an EIR will be required for every minor subdivision or small office building?
The California Chapter – American Planning Association (CCAPA) suggests the answer should be no. A white paper prepared by the CCAPA's Climate Change Task Force contains this recommendation: "The Legislature should require CEQA climate change analysis only for large projects and exempt small and infill projects from this requirement. For instance, limiting the requirement for climate change analysis to projects of statewide, regional or area-wide significance should be used as a starting point for the definition. General plans, general plan updates, regional transportation plans, and specific plans should also be included in the definition of projects requiring climate change analysis."
The CCAPA further recommends exempting LEED-certified "sustainable" developments, and projects that are consistent with a local or regional plan that includes climate change strategies.
Environmental organizations, however, may be reluctant to accept CCAPA's "streamlined" approach. They are more likely to agree on the CCAPA's call to recognize that the impacts of climate change on a project — such as increased flood risk and reduced water supply — also should be considered during environmental review.
Like California, other states are only beginning to wrestle with greenhouse gas emissions as a land use issue. In September, New Mexico Gov. Bill Richardson's Community Development Council adopted regulations for awarding Community Development Block Grant planning funds. The regulations require that plans analyze greenhouse gas emissions from the housing, transportation, commercial and industrial sectors, and include policies for reducing the emissions. In Massachusetts, the state has started conducting climate change analyses for state building projects.
Of course, the new CEQA Guidelines will not be in place for more than two years. In the meantime, OPR has been advising people preparing environmental documents to use whatever quantification tools are available, acknowledge that there are no standards of significance, and simply make a good faith effort to address climate change.
Rivasplata had a different view of the interim period: "You get chased around by the attorney general and you get sued by other interests."
Meanwhile, Guideline amendments based on recent statutory changes went into effect in late July. The amendments reflect things that lead agencies should already have been doing, according to practitioners.
Among the statutory charges were new definitions for exempting certain infill projects, farmworker housing and affordable housing from environmental review. There has been confusion over exactly how far those exemptions reach, explained Terry Roberts, director of the state CEQA clearinghouse.
The new Guidelines also take into account 2001 legislation regarding water supply studies for large subdivisions, and the mandate for the preparation of urban water management plans. The fact that those laws have been in place for years but were not reflected in the Guidelines created some confusion, Rivasplata said.
Terry Rivasplata, Jones & Stokes, (916) 737-3000.
Russell Lowery, Office of Sen. Bob Dutton, (916) 651-4031.
CCAPA climate change white paper: www.calapa.org
Updated CEQA Guidelines: http://ceres.ca.gov/ceqa/