The Natural Lawyer
While federal courts to date have approved summary analyses of climate change impacts, the status quo is about to change. The Council on Environmental Quality is proposing guidance governing the evaluation of climate change impacts under NEPA. Pending cases before the California Supreme Court may foreshadow new NEPA-based greenhouse gas (GHG) challenges to transportation projects.
1. Cleveland National Forest Foundation v. San Diego Association of Governments
The California Court of Appeal held that the analysis of greenhouse gas emissions from transportation projects in a metropolitan transportation plan violated the California Environmental Quality Act (CEQA). The metropolitan planning organization (MPO) for San Diego certified an environmental impact report ("EIR") evaluating the impacts of the region's transportation plan. The MPO concluded that the transportation plan achieved GHG emission reductions for 2020 and 2035 established pursuant to state law for the San Diego region. State law does not currently require MPOs to achieve the much more aggressive GHG reduction goal for 2050 included in an executive order by former Governor Schwarzenegger. Nevertheless, the Court of Appeal concluded that CEQA required the MPO to evaluate the consistency of the transportation plan with the 2050 GHG goal, and to evaluate alternatives and mitigation measures to achieve 2050 goal.
In March 2015, the California Supreme Court granted the MPO's petition for review. The MPO argued that the Legislature did not adopt the 2050 goal and that an executive order is unenforceable unless adopted in legislation. The MPO also argued that mandating the evaluation of alternatives and mitigation measures to achieve the 2050 goal conflicts with the MPO's discretion under CEQA to identify an appropriate threshold of significance for GHG emissions.
The California Supreme Court will address whether an environmental impact report for a regional transportation plan must analyze the plan's consistency with the 2050 GHG emission reduction goal in the Governor's Executive Order. The case presents important questions regarding whether CEQA requires MPOs in California to evaluate transportation plan alternatives and mitigation measures to achieve GHG reduction goals that are not mandated by California's climate change legislation. If the Supreme Court affirms the Court of Appeal, and if a federal court were to apply this logic in the NEPA context, the scope of review for transportation projects could be expanded to include goals for GHG emissions that are not mandated by federal law.
2. Center for Biological Diversity v. Department of Fish & Wildlife
Because the California Supreme Court granted review of this case in July 2014, this matter is now fully briefed and awaiting a date for argument. Center for Biological Diversity v. Department of Fish & Wildlife will address whether a public agency can use a hypothetical future "business as usual" baseline in order to determine whether a project's GHG emissions will have a significant impact on the environment.
In response to California climate change legislation (Assembly Bill No. 32), the California Air Resources Board determined that California's overall emissions must be reduced to 29% below "business as usual" in order to meet the legislation's GHG reduction target for 2020. In Center for Biological Diversity, the environmental impact report for the project adopted the standard of 29% reduction from business as usual as the threshold of significance for purposes of determining whether a project's GHG emissions will have a significant impact on the environment.
The Court of Appeal concluded that the state lead agency had the discretion under CEQA to use the Air Resources Board's methodology for determining whether the project GHG emissions were significant under California law. The petition for review filed in the Supreme Court argued that CEQA requires the lead agency to determine the significance of GHG emissions by comparing project emissions against existing GHG emissions in the project area. Because the project area is largely undeveloped, an "existing conditions" baseline would necessarily establish a very low threshold of significance for GHG emissions. If the California Supreme Court reverses the Court of Appeal, lead agencies in California will be required to determine that project GHG emissions are significant – even in circumstances where the project is meeting the legislatively-adopted GHG reduction goal using a methodology approved by the California Air Resources Board.
California is at the forefront of GHG emissions and climate change issues. There is a distinct possibility that the California Supreme Court's decisions in the above cases will determine whether transportation agencies will face a more burdensome environmental review process.