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CEQA Climate Change Suit Results in (Another) Agreement to Reduce Greenhouse Gas Emissions by Way of Local Land Use Controls

By: Paul S. Weiland
09/26/08

In response to lawsuits filed by California Attorney General Jerry Brown and the Sierra Club, on September 9, 2008, the City of Stockton passed a controversial resolution to enter a Memorandum of Agreement (MOA) with the Attorney General and the Sierra Club to settle claims that the city's 2035 General Plan Update Environmental Impact Report (EIR) did not adequately analyze the General Plan's impacts on climate change. The MOA requires the city to both study the climate change impacts of its land use decisions and take affirmative actions – in the form of ordinances or general plan amendments – to adopt land use controls designed to reduce greenhouse gas (GHG) emissions in accordance with the Global Warming Solutions Act of 2006 (AB 32). It also grants perpetual oversight of local land use decisions to the Attorney General and the Sierra Club.

If implemented, the MOA will impose yet another layer of environmental review on residential and commercial development projects in Stockton, add more uncertainty to the entitlement process, and grant unprecedented oversight of local land use decisions to the Attorney General and a non-governmental environmental organization.

The Climate Action Plan and Climate Impact Study Process

The MOA gives city staff two years to prepare a "Climate Action Plan" (CAP) to present to the city council for adoption. In the interim, the city must implement a "Climate Impact Study Process" for projects subject to specific or master development plans or larger size projects such as a residential development of more than 500 units (covered projects). The latter process requires city staff to study and propose "early climate protection actions" for each covered project. The city council must then hold at least one public hearing on the proposed conditions of approval prior to the first discretionary project approval to evaluate the feasibility of the early climate projection actions.

The CAP will require the city to inventory or estimate GHG emissions from all sources for the years 1990, 2008 and 2020 – the last date being the AB 32 deadline for the state to reduce GHG emissions to 1990 levels – and set specific GHG reduction targets.

To meet the GHG reduction targets, both the CAP and interim Climate Impact Study Process would require new developments to:

(1) Reduce per capita vehicle miles travelled (VMT);

(2) Achieve green building certifications such as Build it Green for new residential projects and LEED Silver for commercial projects;

(3) Fund transit both inside and outside the city (e.g., to the East Bay), and incorporate project design features to make all new developments transit friendly; and

(4) Balance suburban development with infill and other development within the existing city limits – a requirement that may be imposed through an ordinance that would halt approvals for covered projects outside the city limits until required infill and downtown development milestones have been achieved, and possibly by requiring or allowing suburban developments to pay into an "infill mitigation bank."

Once the CAP is implemented, if city staff determines that the CAP measures are not achieving the targeted GHG reductions, the city must consult with both the Attorney General and the Sierra Club. If necessary, the city must adopt further ordinances or General Plan amendments to "ensure" that the reductions are met.

Discussion

The MOA marks the second time in just over a year that environmental groups and the Attorney General have successfully used a petition under the California Environmental Quality Act (CEQA) to force a local government entity to consider (and presumably adopt) land use controls to reduce GHG emissions to meet the goals of AB 32. The first such settlement resolved CEQA claims against the adequacy of climate change analysis in the County of San Bernardino's General Plan EIR. But in contrast to the San Bernardino settlement, the Stockton MOA imposes substantially higher obligations. It includes far more detailed GHG reduction requirements, a provision for perpetual oversight of local land use decisions by the Attorney General and the Sierra Club, and it arguably obligates the city to adopt specific GHG reduction measures, whereas the San Bernardino settlement on its face only requires the county to consider adopting measures to reduce GHG emissions.

The MOA expressly aims at achieving the goal of AB 32 to reduce statewide GHG emissions to 1990 levels by 2020, almost exclusively at the expense of new development. While setting no binding legal precedent, the MOA likely will embolden environmentalists and the Attorney General to continue to use CEQA as a lever to impose the same or similar terms on other local land use agencies that are in the process of updating their general plans or considering discretionary approvals of major projects. It worked in San Bernardino County, and now it has worked in Stockton.

If fully implemented, the CAP will place an unprecedented burden on purchasers of new homes to essentially mitigate GHG emissions from existing housing in addition to any impacts to climate change that might be attributable to their homes. Due to the interim Climate Impact Study Process, Stockton area developers face unprecedented additional environmental review of major projects and the uncertainty and risk that comes with the new process for at least the next two years.

Looking Forward

Gone are the days of finding that impacts to climate change are too uncertain to merit analysis in EIRs for major projects.

Lead agencies faced with major project approvals must disclose the potential impacts on climate change and consider a range of mitigation measures to support their CEQA determinations. There are a number of technical tools available that lead agencies might use to inventory GHG emissions from major projects. But there is no uniform threshold of significance against which lead agencies can measure the impacts of such emissions. The Governor's Office of Planning and Research (OPR) must prepare draft CEQA Guidelines for the treatment of climate change in CEQA documents by July 1, 2009, and it has asked the Air Resources Board's technical staff to recommend a method for determining a threshold of significance for GHG emissions, but the statutory deadline for OPR to adopt the final guidelines is January 1, 2010. Until then, lead agencies and applicants are well advised to consider robust GHG mitigation measures and to carefully document their reasons for adopting or rejecting such measures for any major project.

For a discussion of practical approaches to climate change analysis in CEQA documents, please click here.

For a perspective on the analysis of climate change in NEPA documents, please click here.

For a discussion of the impacts of climate change on land use and development generally, please click here.

Paul Weiland is the Land Use Practice Group Leader at Nossaman. He counsels clients regarding environmental and land use matters and litigates such matters in trial and appellate courts under a variety of statutes, including the Endangered Species Act. He can be reached at 949.833.7800 or pweiland@nossaman.com.

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