Greenhouse Gas Impacts

In Tsakopoulos Investments v. County of Sacramento (2023) 95 Cal. App. 5th 280, the Third District Court of Appeal (“Court”) upheld the County of Sacramento’s (“County”) certification of the Mather South Community Master Plan (the “Master Plan” or “Project”) environmental impact report (EIR) under the California Environmental Quality Act (CEQA). In the published portion

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.

Golden Gate TrafficSince the passage of AB 32 in 2006, the methods for climate change analysis under CEQA have taken a number of turns. Most recently, the California Supreme Court in Center for Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal.4th 204, concluded that an EIR for a major development project (Newhall Ranch) lacked substantial evidence to show that the project’s reductions in emissions would be consistent with AB 32’s statewide goal for greenhouse gas (GHG) reductions by the year 2020. In a harbinger of its impending opinion in Cleveland National Forest v. San Diego Assoc. of Governments, the Court suggested that AB 32’s goal for 2020 may become less and less relevant as 2020 fast approaches. The Supreme Court’s opinion did state, however, that “[w]hile the burden of CEQA’s mandate in this context can be substantial, methods for complying with CEQA do exist”—expressly referencing consistency with regional climate action plans or sustainable communities strategies under SB 375.

On June 30, the First Appellate District issued an opinion that offered some hope to agencies struggling with climate analysis by rejecting a challenge to the regional GHG reduction mandates of “Plan Bay Area,” the sustainable communities strategy developed by the Metropolitan Transportation Commission (MTC) and Association of Bay Area Governments (ABAG) to comply with the requirements of SB 375. In Bay Area Citizens v. Association of Bay Area Governments, the appeals court rejected petitioner’s argument that the EIR for the Plan should have taken into account reductions in GHGs that will occur under statewide GHG reduction mandates.

Subdivision Map ActCities and counties across the state have revised their general plan policies to address the interrelated issues of greenhouse gas (GHG) emissions and energy consumption by new commercial and residential development, often in proactive and innovative ways. However, the rubber only meets the road when those projects undergo CEQA review, and courts evaluate whether those paper policies translate into real-world action. The Fourth Appellate District recently weighed in on one such situation – and found that key information got lost in translation.

In Spring Valley Lake Association v. City of Victorville (May 25, 2016), a local association challenged the construction of an approximately 215,000 square foot commercial retail development in the City of Victorville, which included an approximately 185,000 square foot Wal-Mart store. The challenge included claims under CEQA, state Planning and Zoning Law provisions concerning general plan consistency, and the Subdivision Map Act.

Urban TrafficIn late January, the Governor’s Office of Planning and Research (OPR) released its revised proposal to update the CEQA Guidelines with respect to the analysis of transportation impacts. OPR has not backed off from the main thrust of its original proposal: abandonment of “level of service” (LOS) in favor of “vehicle miles travelled” (VMT) as the primary metric of significance. However, the revised proposal recognizes that implementation of this sea-change in one of the most complex (and heavily litigated) areas of impact analysis cannot happen overnight, and lead agencies and consultants will benefit from some technical assistance up front.

Currently, the most common metric used in evaluating a project’s transportation impacts is LOS, which measures the delay that vehicles experience at intersections and on roadway segments. However, as OPR noted in its original proposal, focusing on a project’s impact on LOS often has unintended consequences, including the imposition of mitigation measures – such as increased roadway capacity – that can exacerbate poor traffic conditions over the long term. It can also discourage infill development, because adding traffic to urban areas increases the likelihood of a finding of significance that would trigger the need for an environmental impact report (EIR).

2015 and 2016 Year2015 was a banner year for CEQA rulings by the California Supreme Court, with four decisions handed down, each of which addressed key issues in the application of the statute and its governing regulations: Berkeley Hillside clarified the application of the “unusual circumstances” exception to categorical exemptions; City of San Diego addressed the feasibility of offsite mitigation; Center for Biological Diversity set new parameters for analysis of greenhouse gas emissions; and CBIA confirmed that CEQA does not address the environment’s impact on a project.