CEQA Rules For Agency Actions Affecting Climate Change
This article first appeared in the November 2008 issue of California Environmental Law Reporter (Matthew Bender). Permission to reprint the article has been granted by the Publisher.
Introduction
State and local agencies in California have discretionary approval authority over a variety of actions and projects that have the potential to increase greenhouse gas ("GHG") emissions and contribute to climate change. Under the California Environmental Quality Act ("CEQA"), state and local agencies are generally required to prepare an Environmental Impact Report ("EIR") so long as there is substantial evidence that a project approval may potentially have a significant adverse environmental effect. If there is no substantial evidence of potential significant adverse effects, or if such anticipated effects can be mitigated to a level that renders them less than significant, CEQA permits a state or local agency to adopt a more limited document called a "Negative Declaration" (or "Mitigated Negative Declaration").
If an EIR is required, CEQA provides that an EIR, inter alia, must identify whether each particular environmental effect from a proposed project is "significant," and must then identify all "feasible mitigation" for all environmental effects found to be "significant." If the EIR is unable to identify feasible mitigation to reduce all adverse environmental effects to "less than significant" levels, CEQA then requires that a state or local agency adopt a "Statement of Overriding Considerations" before approving the underlying action/project.
Many state and local agencies are now confronting the question of how CEQA's environmental assessment framework and rules work when applied to approvals that have the potential to increase GHG emissions and contribute to climate change. Answering this question has proved difficult, due to the current absence of CEQA statutory provisions, CEQA Guidelines or reported court decisions directly addressing the issue of what constitutes legally-adequate GHG emission analysis. While the Governor's Office of Planning and Research (OPR) attempted to address these issues in its June 19, 2008, Technical Advisory ("OPR Technical Advisory"), OPR mainly reiterated well-established principles of CEQA. Moreover, as discussed below, the OPR Technical Advisory fails to provide guidance on the most critical unresolved issue relating to GHG emissions analysis under CEQA, namely, the determination of significance.
This article identifies some of the CEQA compliance approaches that have been proposed to date to address state and local agency approvals having climate change impacts, and evaluates which of these approaches are likely to withstand judicial scrutiny.
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