Analyzing Greenhouse Gas Emissions Under Ceqa: Why the Questions Left Unanswered by Newhall Ranch Have Demonstrated the Need for an Update to the Ceqa Guidelines
| Publication year | 2017 |
| Author | by Martin P. Stratte and Jonathan E. Shardlow |
by Martin P. Stratte* and Jonathan E. Shardlow**
"It's time for courage, it's time for creativity and it's time for boldness to tackle climate change . . . The risk is real, the cost is huge and growing, and therefore taking a sequence of realistic steps just makes sense, and that's what we're going to do in California."1
—California Governor Jerry Brown
When a lead agency analyzes the environmental impacts of a "project"2 in accordance with the California Environmental Quality Act (CEQA), one of the issues that must be analyzed "is whether a project will significantly increase greenhouse gas [(GHG)] emissions."3This requirement was enacted in 2007 through Senate Bill 97 (SB 97), which directed the Office of Planning and Research (OPR) to prepare, and the California Natural Resources Agency (Resources Agency) to adopt, guidelines outlining how lead agencies should analyze the significance of GHG emissions.4 Since then, the Legislature has continued to enact regulations intended to aggressively reduce the state's GHG emissions.
In November 2015, the California Supreme Court examined this regulatory framework in its landmark opinion in Center for Biological Diversity v. California Department of Fish and Wildlife, 62 Cal.4th 204 (2015) (Newhall Ranch). As CEQA practitioners know, the Newhall Ranch opinion significantly altered the manner in which GHG emissions were previously analyzed under CEQA. In addition, the opinion also left several unanswered questions that have made the preparation of a CEQA-compliant GHG analysis, which was already one of the most complex areas of CEQA, even more of an uncertain process.
Now, nearly two years later, many would agree that it is still not entirely clear as to how GHG emissions should (or can) be analyzed in accordance with CEQA and the regulatory framework in existence in 2015, when the Newhall Ranch opinion was published.
Despite this lack of clarity as to compliance with the prior regulations, the regulatory landscape continues to change at a rapid pace. Some of these changes were discussed earlier this year by the California Supreme Court in Cleveland National Forest Foundation v. San Diego Association of Governments, 3 Cal.5th 497 (2017) (Cleveland National Forest), which was published in July 2017.
This article will examine:
- The regulatory and legal framework that governs the analysis of GHG emissions under CEQA and recent changes to the same;
- How the questions left unanswered by Newhall Ranch affect the preparation of GHG analyses; and
- How future analyses of GHG emissions under CEQA may change as a result of the holding in Newhall Ranch.
As discussed below, the subject of analyzing GHG emissions can be enough to make one wonder whether a project's potential GHG impacts are simply too speculative to determine. In fact, in 2008, one lead agency did just that.
Furthermore, although there have been attempts to "streamline" the analysis of GHG emissions under CEQA (or perhaps, more accurately, attempts to "encourage" streamlining), the intended benefits of these efforts are being felt by what appears to be just "several jurisdictions."
For the reasons discussed herein, an update of the CEQA Guidelines that relate to the analysis of GHG emissions is warranted.
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With each passing day, the subject of GHG emissions and the related impacts on global climate change receives more and more attention.
Earlier this year, President Donald Trump drew the world's attention to the subject when he announced his decision to withdraw the United States from the Paris climate agreement. During the announcement, President Trump said, "As someone who cares deeply about our environment, I cannot in good conscience support a deal which punishes the United States," while also stating that, "I was elected by the citizens of Pittsburgh, not Paris."5
In response, California Governor Jerry Brown vowed that California would resist any efforts of the Trump Administration to roll back or impede the actions that have been taken by the state to reduce its carbon footprint: "Donald Trump has absolutely chosen the wrong course. He's wrong on the facts. America's economy is boosted by following the Paris Agreement. He's wrong on the science. Totally wrong. California will resist this misguided and insane course of action. Trump is AWOL but California is on the field, ready for battle."6
Although it is not the purpose of this article to assess the merits of the arguments presented by those on either side of the climate change debate, it is important to note the significant divergence of opinions on the subject.
Despite these differences of opinion, it appears that many, including the California Supreme Court, agree that the analysis of GHG emissions poses especially unique challenges, because GHG emissions are a matter of global concern, rather than a local or even statewide issue:
First, because of the global scale of climate change, any one project's contribution is unlikely to be significant by itself. The challenge for CEQA purposes is to determine whether the impact of the project's emissions of greenhouse gases is cumulatively considerable, in the sense that 'the incremental effects of [the] individual project are considerable when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects.' 'With respect to climate change, an individual project's emissions will most likely not have any appreciable impact on the global problem by themselves, but they will contribute to the significant cumulative impact caused by greenhouse gas emissions from other sources around the globe. The question therefore becomes whether the project's incremental addition of greenhouse gases is "cumulatively considerable" in light of the global problem, and thus significant.'
Second, the global scope of climate change and the fact that carbon dioxide and other greenhouse gases, once released into the atmosphere, are not contained in the local area of their emission means that the impacts to be evaluated are also global rather than local. For many air pollutants, the significance of their environmental impact may depend greatly on where they are emitted; for greenhouse gases, it does not.7
To accomplish the goal of becoming an international climate leader, California has enacted regulations that set ambitious GHG reduction goals. These regulations necessarily guide the analysis of GHG emissions through CEQA.
A. Assembly Bill 32: The California Global Warming Solutions Act of 2006In 2005, Governor Arnold Schwarzenegger signed Executive Order No. S-3-05 (Executive Order S-3-05), which proposed GHG emission reduction targets for California in the years 2010, 2020, and 2050. The reduction targets were as follows:
- 2010: reduce GHG emissions to 2000 levels;
- 2020: reduce GHG emissions to 1990 levels; and
- 2050: reduce GHG emissions to 80 percent below 1990 levels.8
"These targets were based on a scientific consensus that climate change was largely caused by human activity resulting in elevated levels of carbon dioxide and other heat-trapping gases in the atmosphere and that drastic reductions in greenhouse gas emissions were required to stabilize the climate."9
Thereafter, the Legislature enacted the California Global Warming Solutions Act of 2006, or Assembly Bill 32 (AB 32).10 AB 32 codified the 2020 reduction target set forth in Executive Order S-3-05, but not the 2050 reduction target.11
"Under [AB] 32, the [California Air Resources Board (ARB)] was required to determine as accurately as possible the statewide level of greenhouse gas emissions in 1990 and to approve on that basis a statewide emissions limit to be achieved by 2020."12 ARB's findings were to be detailed in a "scoping plan."13
Importantly, AB 32 "did not 'provide thresholds or methodologies for analyzing a project's impacts' on global climate change."14
B. The 2008 Climate Change Scoping PlanIn 2008, ARB released its Climate Change Scoping Plan (Scoping Plan), as required by AB 32, which concluded that the reduction of GHG emissions "to 1990 statewide levels means cutting approximately 30% from business-as-usual [(BAU)] emission levels projected for 2020."15 BAU levels represent the level of anticipated emissions for a given year "with no conservation or regulatory efforts beyond what was in existence when the forecast was made."16
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"The Scoping Plan then set out a 'comprehensive array of emissions reduction approaches and tools' to meet the goal, including expanding energy efficiency programs, achieving a statewide renewable energy mix of 33 percent, developing with our regional partners a cap-and-trade program for greenhouse gases, establishing targets and policies for emissions in transportation programs, and creating targeted fees on certain activities affecting emissions."17
Further, the "Scoping Plan encourages local jurisdictions to develop 'climate action plans' or greenhouse gas 'emissions reduction plans' for their geographic areas, and[, as of November 2015,] several jurisdictions have adopted or proposed such plans as tools for CEQA streamlining."18
As will be discussed below, ARB is currently in the process of updating the Scoping Plan, which was last updated in 2014.
C. Senate Bill 375: Sustainable Communities and Climate Protection Act (2008)In 2008, the Legislature enacted the Sustainable Communities and Climate Protection Act, or Senate Bill 375 (SB 375).
"In enacting this law, the Legislature found that the transportation sector contributed 40 percent of the state's greenhouse gas emissions and that automobiles and light trucks alone are responsible for 30 percent. The Legislature also found the state could...
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