Incorporating Analysis of Sea-Level Rise Into Environmental Impact Reports.

Author:Warfield, Emily
 
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TABLE OF CONTENTS INTRODUCTION I. SEA-LEVEL RISE: PROJECTIONS, EFFECTS, AND DAMAGE CONTROL TOOLS A. CEQA Can Help Local Governments Evaluate the Risks of Sea-Level Rise II. THE CURRENT CASE LAW AND OPR GUIDELINES A. Sea-Level Rise in the Public Resources Code and the OPR Guidelines B. Ballona Wetlands and CBIA vs. BAAQMD 1. Sea-Level Rise Analysis is Not Reverse-CEQA III. INCORPORATING ANALYSIS OF SEA-LEVEL RISE INTO EIRS A. Analysis of Sea-level Rise Effects on Resources Listed in Appendix G of the OPR Guidelines 1. Mineral Resources 2. Biological Resources 3. The Public Trust 4. The Sierra Club v. City of Oxnard Approach CONCLUSION INTRODUCTION

The California Environmental Quality Act (1) is a powerful tool both for understanding and for mitigating the risk of environmental degradation because it mandates full public disclosure of the significant effects that a future development will have on the environment. (2) However, confusing judicial treatment on the issue of sea-level rise analysis in EIRs has resulted in inconsistency in analysis. The judiciary has suggested in dicta that analysis of sea-level rise is "reverse-CEQA," and not required. This muddled dicta is in conflict with CEQAs policy of complete and good faith disclosure in EIRs. Perhaps due to the conflict between CEQAs principle of full disclosure of environmental effects, and the well accepted prohibition on "reverse-CEQA" analysis, some EIRs for projects in coastal areas include analysis of sea-level rise in environmental impact reports, and some do not. (3)

This Comment argues that, regardless of the ambiguity in the law and inconsistency in its application, analysis of sea-level rise is in fact required in an environmental impact report in order to properly forecast the significant effects of a project on the environment. When dynamic coastlines continue to rise and cause "coastal squeeze," development can significantly interfere with tideland ecosystems, wetlands, and coastal processes like beach migration, affecting mineral resources, biological resources, and resources that implicate the public trust doctrine. While the effects of sea-level rise may be analyzed in an EIR under resource categories listed in Appendix G of the CEQA Guidelines, an independent analysis of sea-level rise should be included in an EIR to determine at what point the project could threaten or deplete coastal resources.

Part I of this Comment will provide an overview of how sea-level rise affects coastal resources, and the role that CEQA can play in mitigating these affects. Part II will detail what an EIR currently requires with regard to sea-level rise analysis and forecasting. Part III will then argue that the paradigm created by the judiciary and inconsistently adhered to by practitioners fails to account for the science behind coastal dynamics, and that a lead agency should always consider sea-level rise over time in an EIR to sufficiently protect coastal environmental resources.

  1. SEA-LEVEL RISE: PROJECTIONS, EFFECTS, AND DAMAGE CONTROL TOOLS

    Our coastline is dynamic, in that it changes seasonally. However, anthropogenic climate change has seen the coastline move more consistently inland. Where development interferes with this natural process, sea-level rise can threaten expensive coastal infrastructure (4) and deplete coastal environmental resources, thereby endangering coastal ecosystems. (5)

    Where rising seas meet development instead of cliffside, sandy beach, or marshy wetland, flooding can destroy valuable property and cause "coastal squeeze." (6) "Coastal squeeze" occurs where coastal development impedes the natural inland migration of beaches, depleting habitat for one of the most biodiverse marine ecosystems on the planet, and harming a crucial cultural resource. (7) Many coastal communities in California are already experiencing these impacts, (8) and the best available science suggests that damages will worsen as sea-level rise accelerates. (9) Further, the dense development on the California coast suggests even more so that the damage will be devastating: 68 percent of the state population lives within its nineteen coastal counties, and these coastal areas account for 80 percent of the state GDP. (10)

    However, local governments have the requisite tools to mitigate the economic, cultural, and environmental consequences of sea-level rise, but need adequate information to evaluate risk and make planning decisions that alleviate the burden rising sea-levels place on coastal communities and ecosystems. (11)

    Since land use decisions in California are made on a local level, local governments in California bear the responsibility of making land use decisions that mitigate these harms. Thereby, they have the power to adopt and implement adaptation strategies in order to save valuable coastal infrastructure and ecosystems. (12) Whereas local governments may implement any of several strategies to mitigate the effects of sea-level rise, these local governments need to be adequately informed in order to implement them. Adaption strategies include: (1) retreat from the shoreline; (2) adapt infrastructure to be resilient to sea-level rise; and (3) protect shoreline infrastructure from sea-level rise. (13) Local governments have a repertoire of regulatory tools with which to implement one or more of these adopted strategies. (14) However, to effectively implement any one of these strategies, it is crucial for local government officials and their constituents to be properly informed of the way that sea-level rise will affect development on the coastline-enter the California Environmental Quality Act.

    Without adequate information about the risks of sea-level rise to coastal development (and vice versa), local governments often approve development in high-risk areas. (15) Accordingly, the OPR Guidelines for Sea-Level Rise Adaptation set forth a five-step decision-making process to help local governments plan appropriate development in coastal areas. (16) Knowledge and disclosure of risks is a crucial part of the five-step process, and where a private development requires discretionary approval, local government can use the CEQA process to be adequately informed of the risks that the development may create with respect to sea-level rise.

    1. CEQA Can Help Local Governments Evaluate the Risks of Sea-Level Rise

    The California Environmental Quality Act (CEQA) (17) is a regulatory tool that mandates the disclosure of environmental risks when a state or local agency approves a discretionary project. Therefore, one of the myriad tools local government can harness to employ sea-level rise adaptation strategies in a proactive planning context is the Environmental Impact Report (EIR). Through the EIR, CEQA "may provide an opportunity for local governments to evaluate, on a project-by-project basis or at the planning stage, the relationship between future sea-level rise and planned development near the coastline." (18) Because CEQA requires public agencies to disclose any significant environmental impacts of a proposed development and mitigate any effects they deem above a certain threshold of significance, it is a powerful public disclosure tool. (19) As will be discussed in Part II, analysis of sea-level rise is not explicitly required by CEQA or its guidelines, so there is not currently uniform disclosure of the effects of sea-level rise on a project over time. Nonetheless, CEQA does require agencies to forecast environmental risks to the best of their ability. (20) Sea-level rise may, over time, affect traditional resource categories that are governed by CEQA.

  2. THE CURRENT CASE LAW AND OPR GUIDELINES

    Case law indicates that lead agencies need not analyze sea-level rise in EIRs unless a proposed development would exacerbate the effects of sea-level rise. Due to the lack of direction in the California Public Resources Code and the California Code of Regulations, decisions about whether or not an analysis of sea-level rise is required in an EIR have been made on a case-by-case basis in CEQA litigation. Executive Order S-13-08 and B-30-15 both direct state agencies to consider sea-level rise in planning and financing decisions, but there is no indication that local agencies are required to consider sea-level rise in planning decision. (21)

    The California Court of Appeal held in Ballona Wetlands that sea-level rise analysis was not required because that would be reverse-CEQA. The California Supreme Court confirmed this holding in a different case that did not involve sea-level rise and added an exception to the general rule for cases where the project might exacerbate the existing environmental conditions. However, the Court did not clarify whether sea-level rise fell within this exception. According to recently approved environmental impact reports (EIRs), practitioners and lead agencies still interpret CBIA v. BAAQMD to mean that sea-level rise analysis is not required for coastal projects. In other words, sea-level rise does not fit into the exacerbation exception. However, this approach is inconsistent with the idea that a project affected by sea-level rise will always interrupt the littoral cycle. It is also inconsistent with the idea that blocking the sea-level rise with a development project will always affect environmental resources. For these reasons, the holding in Sierra Club v. City of Oxnard presents a better approach to the sea-level rise analysis.]

    This Part presents an analysis of the judicial decisions on this question. The ambiguities presented herein underscore both the complexity of CEQA and judicial misunderstanding of coastal processes. Further ambiguity arises from application of the law to the incredible variety of coastal environments in California--built, armored, and undeveloped.

    1. Sea-Level Rise in the Public Resources Code and the OPR Guidelines

      Given that the California Public Resources Code (CPR) includes only broad language about...

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