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AB 32 Offers Legal Benchmark for Greenhouse Gas Analysis

Jurisdictions across California have slowly come to accept that their environmental reviews under the California Environmental Quality Act now must address greenhouse gas emissions. Yet, relatively few rulings exist to help jurisdictions establish thresholds by which to analyze a project's GHG impact. A recent case suggests that Assembly Bill 32, California's 2006 climate change law, may provide a reasonable guide. 

In Citizens for Responsible Equitable Environmental Development v. City of Chula Vista, the Court of Appeal for the Fourth Appellate District found substantial evidence of a fair argument that the development of a Target store would have a significant environmental impact. The court held that the project would likely disturb contaminated soil, but it rejected challenges to the project based on air pollution and greenhouse gas impacts.

The City of Chula Vista adopted a mitigated negative declaration (MND) for the construction of a Target store on a site formerly occupied by a smog check facility, a market, and existing, smaller Target store. The MND concluded the project could have significant environmental impacts in the areas of air quality, geology and soils, hazards and hazardous material, hydrology and water quality, and traffic/transportation, but that all impacts could be mitigated. 

Citizens for Responsible Equitable Environmental Development (CREED) filed a petition for writ of mandate challenging the approval of the project and MND.  The trial court denied the petition and CREED appealed, claiming there was substantial evidence of a fair argument that the project may have a significant impact on hazards or hazardous materials, air quality for sensitive receptors, particulate matter and ozone, and greenhouse gas emissions and global climate change. The Court of Appeal for the Fourth District reversed the decision on hazards and hazardous materials, but affirmed the trial court judgment in all other respects. 

On each count, the court ruled as follows: 

Hazardous Materials: The court found that the administrative record contained evidence that a former gas station on the site contaminated the soil beneath the site, but contained no evidence of mitigation measures directed at the contaminated soils. Therefore, there was substantial evidence of a fair argument that the project would have a significant environmental impact by disturbing contaminated soils. 

Air Pollution Impact on Sensitive Receptors: An Air Quality Assessment ("AQA") was prepared for the Project using the CEQA Air Quality Handbook created by the South Coast Air Quality Management District ("District"). The District requires Heath Risk Assessment of diesel particulate matter for projects that generate substantial truck traffic or substantially increase traffic over existing levels. The AQA concluded the project would not significantly impact traffic and determined that emissions associated with construction and operation did not exceed air quality thresholds. Thus, there was no substantial evidence of a fair argument that the project would have a significant impact by exposing sensitive receptors to increased air pollution.

Cumulative Impact on Particulate Matter and Ozone: CREED asserted that the project may have significant cumulative air quality impacts due to its contribution of particulate matter and NOx, since the project is located in a non-attainment area, where pollution is already above SCAQMD standards. The city evaluated the project emissions against the significance thresholds established by the district and found that the net increases over existing amounts were below the significance thresholds for all pollutants. Therefore, the court found no substantial evidence of a fair argument existed that the project would cause a significant and unavoidable cumulative contribution to an air quality impact.

Greenhouse Gas and Climate Change: The city used as a threshold for its greenhouse gas analysis whether the project would "conflict with or obstruct the goals or strategies of the California Global Warming Solutions Act of 2006 or its governing regulation." CREED claimed that since the Project allegedly exceeded three other well-recognized potential thresholds of significance, a fair argument existed that the Project would have a significant impact on greenhouse gas and climate change.  The court found that the city properly exercised its discretion to use AB 32 compliance as the threshold. 

CREED further challenged the city's use of a reduction target of 20 percent below business as usual. The AQA analyzed the AB 32 goal of reducing GHG to 2000 levels by 2010 and 1990 levels by 2020, and determined that eleven percent and 25 percent reductions in business as usual would be necessary to achieve these targets. The city then set the reduction target at 20 percent a mid-point between the 2010 and 2020 goals. CREED claimed the 20 percent reduction target was not supported by substantial evidence. The AQA concluded that the implementation of the emission reduction program would reduce the Project's emissions by 29 percent. The court found this was adequate and found the issue of whether the target should have been 20 percent or 25 percent irrelevant. 

Finally CREED argued the city should have used the 33 percent reduction set by San Diego County in its "On-Road Transportation Report," as the target. The court reiterated the city's discretion to not adopt this threshold.

The court remanded to the trial court to determine whether the mitigation imposed addresses soil contamination. The appellate court directed the trial court to order the preparation of an EIR if the trial court finds mitigation for soil contamination was not imposed. 

Agencies have been struggling to prepare greenhouse gas emissions analyses in the absence of adopted numeric thresholds. This case suggests, without so holding, that the common strategy of basing a greenhouse gas reduction target on the AB 32 reduction goals may be a defensible approach. 

The Case

Citizens for Responsible Equitable Environmental Development v. City of Chula Vista Filed June 10, 2011, published July 8, 2011, D057779, __ Cal.App.4th ___,

The Attorneys

For CREED: Briggs Law Corporation, Cory J. Briggs and Mekaela M. Gladden 

For the City of Chula Vista: Bart C. Miesfeld, City Attorney, and Michael J. Shirey, Deputy City Attorney; Gatzke Dillon & Ballance LLP, Mark J. Dillon and Rachel C. Cook 

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