This post is Part Two of our blog series on the 2019 amendments to the CEQA Guidelines. This post focuses on amendments in the areas of greenhouse gas (“GHG”) emissions, energy, and wildfire impacts, as well as a discussion of OPR’s draft CEQA and Climate Change Advisory.
GHG Impacts and Draft CEQA and Climate Change Advisory
The amendments to the CEQA Guidelines are designed to improve the analysis of impacts from GHG emissions in CEQA documents. These amendments clarify the manner in which the significance of a project’s GHG emissions is determined, and give the lead agency discretion to select a model or methodology to estimate GHG emissions. Several of these amendments were made to ensure consistency with recent appellate case law dealing with GHG emissions, cumulative impacts, and significance determinations, including Center for Biological Diversity v. Dept. of Fish & Wildlife (2015) 62 Cal.4th 204 and Cleveland National Forest Foundation v. San Diego Assn. of Governments (2017) 3 Cal.5th 497.
Section 15064.4 Determining the Significance of Impacts from Greenhouse Gas Emissions, has been amended in the following manner:
- Subsection (a) has been revised to replace the word “should” with “shall” with regard to a lead agency’s duty to make a good faith effort to estimate or describe a project’s greenhouse gas emissions. The Natural Resources Agency (“Agency”) made this change to clarify that lead agencies must not just provide information regarding climate change, but make a determination of whether a project’s GHG emissions are significant.
- Subsection (b) has been revised to add four new sentences (shown below). The first sentence clarifies that the focus of analysis must be on the project’s effect on climate change, not simply a quantification of emissions and/or comparison of how a project’s emissions compare to statewide or global emissions. The Agency also clarified that only a project’s “reasonably foreseeable incremental contribution” to the effects of climate change need be evaluated, and that lead agencies need not and should not speculate. The second sentence clarifies that a project’s incremental contribution may be cumulatively considerable even if it appears relatively small compared to statewide, national or global emissions. The third sentence requires lead agencies to consider a timeframe for the analysis that is appropriate for the project, perhaps driven by a project’s intended life or by the length of time over which it will be implemented. The fourth sentence clarifies that a lead agency’s analysis must reasonably reflect evolving scientific knowledge and state regulatory schemes so as to “stay in step with evolving scientific knowledge and state regulatory schemes.” (Cleveland National Forest Foundation v. San Diego Assn. of Governments (2017) 3 Cal.5th 497, 504.)
(b) In determining the significance of a project’s greenhouse gas emissions, the lead agency should focus its analysis on the reasonably foreseeable incremental contribution of the project’s emissions to the effects of climate change. A project’s incremental contribution may be cumulatively considerable even if it appears relatively small compared to statewide, national or global emissions. The agency’s analysis should consider a timeframe that is appropriate for the project. The agency’s analysis also must reasonably reflect evolving scientific knowledge and state regulatory schemes. A lead agency should consider the following factors, among others, when
assessing determining the significance of impacts from greenhouse gas emissions on the environment:
- Subsection (b)(3) was amended to clarify that in determining the significance of a project’s impacts, the lead agency may consider a project’s consistency with the State’s long-term climate goals or strategies, provided that substantial evidence supports the agency’s analysis of how those goals or strategies address the project’s incremental contribution to climate change and its conclusion that the project’s incremental contribution is consistent with those plans, goals, or strategies. As the Court stated in Center for Biological Diversity v. Dept. of Fish & Wildlife (2015) 62 Cal.4th 204, 227, lead agencies must establish through substantial evidence “a quantitative equivalence” between a given statewide plan’s comparison and the EIR’s project-level comparison.
- Subsection (c) mainly reflects language previously located in subsection (a)(1) regarding a lead agency’s discretion to select a model or methodology to quantify emissions. By moving this language, the Agency meant to clarify that models play a role not only in estimating a project’s greenhouse gas emissions, but also in determining baseline emissions and applying thresholds. As noted in the Agency’s Statement of Reasons, when a single quantitative method is used, the lead agency must research and document the quantitative parameters essential to that method. (Center for Biological Diversity v. Dept. of Fish & Wildlife (2015) 62 Cal.4th 204, 228 [invalidating EIR because the lead agency did not provide sufficient evidence that “the Scoping Plan’s statewide measure of emissions reduction can also serve as the criterion for an individual land use project”].)
In December of 2018, OPR issued a draft CEQA and Climate Change Advisory seeking input from the public on issues and topics that arise in greenhouse gas emissions analyses under CEQA. This advisory updates a 2008 advisory to reflect recent legislative mandates to reduce greenhouse gas emissions and establish emission reduction targets, as well as a growing body of case law and CEQA amendments that address climate change and greenhouse gas emissions. The draft CEQA and Climate Change Advisory recommends that agencies adopt significance thresholds based on efficiency, compliance with state goals, consistency with relevant regulations or quantitative thresholds; and provides guidance on adopting mitigation measures. The draft Advisory restates the legislative mandate for lead agencies to tier or streamline their environmental documents wherever feasible, and suggests the preparation of a greenhouse gas emission reduction plan that later environmental documents may tier from or incorporate by reference.
The CEQA Guidelines amendments incorporate a new subdivision (b) of Section 15126.2, Consideration and Discussion of Significant Environmental Impacts. While the existing Appendix F (revised in 2009) clarifies that analysis of energy impacts is mandatory, the Agency added subdivision (b) to section 15126.2 to remove any question about whether such an analysis is required. Of particular note here, the revision emphasizes that compliance with building codes alone is likely not going to be sufficient. The Agency’s Statement of Reasons also clarifies that a “full ‘lifecycle’ analysis that would account for energy used in building materials and consumer products will generally not be required.” The new subdivision (b) reads:
(b) Energy Impacts. If analysis of the project’s energy use reveals that the project may result in significant environmental effects due to wasteful, inefficient, or unnecessary use of energy, or wasteful use of energy resources, the EIR shall mitigate that energy use. This analysis should include the project’s energy use for all project phases and components, including transportation-related energy, during construction and operation. In addition to building code compliance, other relevant considerations may include, among others, the project’s size, location, orientation, equipment use and any renewable energy features that could be incorporated into the project. (Guidance on information that may be included in such an analysis is presented in Appendix F.) This analysis is subject to the rule of reason and shall focus on energy use that is caused by the project. This analysis may be included in related analyses of air quality, greenhouse gas emissions, transportation or utilities in the discretion of the lead agency.
The revised CEQA Guidelines also add a new impact category – “Energy” – to Appendix G, incorporating the changes to Section 15126.2(b) discussed above.
Given the extreme and devastating fire seasons in California during the past several years, it is no surprise that new requirements have been added to CEQA to address a project’s impacts on wildfire hazards. A new Section XX has been added to Appendix G to address the need to evaluate wildfire impacts. This section focuses on whether projects located in or near state responsibility areas (where the state has financial responsibility of preventing and suppressing fires), or lands classified as very high fire severity zones by local agencies, would:
- “Substantially impair an adopted emergency response plan or emergency evacuation plan”;
- “Due to slope, prevailing winds, and other factors, exacerbate wildfire risks, and thereby expose project occupants to, pollutant concentrations from a wildfire or the uncontrolled spread of a wildfire”;
- “Require the installation or maintenance of associated infrastructure (such as roads, fuel breaks, emergency water sources, power lines, or other utilities) that may exacerbate fire risk or that may result in temporary or ongoing impacts to the environment”; or
- “Expose people or structures to significant risks, including downslope or downstream flooding or landslides, as a result of runoff, post-fire slope instability, or drainage changes.”
CalFire publishes Fire Hazard Severity Zone Maps for all regions in California, which can be viewed here. The fire hazard measurement used as the basis for these maps includes the speed at which a wildfire moves, the amount of heat the fire produces, and most importantly, the burning fire brands that the fire sends ahead of the flaming front. Lead agencies and project proponents can review the CalFire maps to determine whether a given project site will be subject to the new CEQA wildfire impacts analysis.