e-Bulletin: Office of Planning and Research Issues Technical Advisory Regarding CEQA and Global Climate Change

For some time, public agencies have struggled with how to analyze global warming impacts when preparing CEQA documents, as there has been a lack of guidance from the State and the courts regarding how such an analysis should be prepared. On June 19, 2008, the State took a step towards providing some guidance as the Governor’s Office of Planning and Research (“OPR”) released a Technical Advisory on this subject.  OPR is charged with preparing revisions or additions to the State CEQA Guidelines addressing the analysis of global warming impacts and submitting them to the California Resources Agency by July 1, 2009, with the California Resources Agency required to consider this proposal and adopt a set of global warming Guidelines by July 1, 2010.  Because the release of these Guidelines will not occur for some time, this Technical Advisory was prepared to provide public agencies with  “OPR’s perspective on the issue.”

The Technical Advisory essentially attempts to relate a global warming impact analysis to the general requirements of CEQA, resulting in a broad outline of how such an analysis may be conducted.  Under the Technical Advisory, there are three basic steps to the global warming impact analysis:

• First, the greenhouse gas (“GHG”) emissions of a project should be identified and quantified (a list of models that can be used is included as an attachment to the Technical Advisory).
• Second, the significance of the impact should be determined.  OPR states that, until a statewide threshold of significance has been set (which OPR has requested that the California Air Resources Board do), it is in the public agency’s discretion to set the threshold of significance, thereby placing all of the responsibility for creating a defensible and scientifically-supported threshold on individual public agencies.
• Third, mitigation must be applied to any significant impact.  Suggested means of mitigating include measures that conserve water or energy, reduce vehicle miles traveled, sequester carbon, or contribute to or are consistent with established regional or programmatic mitigation strategies (a list of which is contained in an attachment to the Technical Advisory).

The Technical Advisory also made the interesting point that it may be that global warming impacts are best addressed through goals and policies at the programmatic level, such as in a general plan, which thereby would obviate the need to do the formulation of mitigation measures on a project-by-project basis.  Still, the Technical Advisory leaves unresolved the critical issue of how to formulate and apply a threshold of significance that is supported by substantial evidence, and in this sense public agencies will have to continue to address the issue individually at least until the global warming Guidelines are released in 2010.

For further assistance or discussion regarding the analysis of global warming impacts pursuant to CEQA, please do not hesitate to contact Best Best & Krieger LLP's Environmental Law and Natural Resources Practice Group.

Disclaimer: BB&K eBulletins are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué. ©2008 Best Best & Krieger LLP