On August 21, 2007, the California State Legislature ended a 52-day budget stalemate, agreeing to a $145 billion spending plan. As part of that agreement, the lawmakers passed minor amendments to the California Environmental Quality Act (“CEQA”). The amendments require the State Office of Planning and Research to develop and prepare guidelines addressing the analysis and feasible mitigation of greenhouse gas emissions, as required by CEQA. These guidelines must be adopted by the Resources Agency by January 1, 2010. The amendments also provide an exemption for certain projects from CEQA lawsuits based on claims that the effects of greenhouse gas emissions were not adequately analyzed or mitigated in an Environmental Impact Report (“EIR”) or other CEQA document prepared for the project. The projects exempted are any transportation or flood protection projects funded by the $25 billion bond measures passed by the voters in 2006. The CEQA exemptions are temporary, expiring on January 1, 2010.
Lawmakers had sought these CEQA exemptions in reaction to a lawsuit filed by Attorney General Jerry Brown against San Bernardino County challenging the EIR prepared for the County’s updated General Plan. The Attorney General alleged that in light of the passage of the California Global Warming Solutions Act (“AB 32”), the County’s General Plan EIR did not adequately analyze the effects of development on global warming. The Attorney General has also submitted comments under CEQA to several other cities and counties, making similar allegations.
Notably, on the same day the CEQA amendments were approved, the Attorney General and San Bernardino County announced the settlement of the global warming lawsuit. Under the settlement, the Attorney General will dismiss his suit, and the County will implement a Greenhouse Gas Emissions Reduction Plan that mandates the following:
- An inventory of all known, or reasonably discoverable, sources of greenhouse gases in the County.
- An inventory of the greenhouse gas emissions levels in 1990, currently, and projected for the year 2020.
- A target for the reduction of emissions attributable to the County’s discretionary land use decisions and its own internal government operations.
Although the CEQA amendments approved as part of the budget compromise would protect the State-funded transportation and flood control projects from potential CEQA claims based on similar arguments that the Attorney General or others may have pursued, the Attorney General is still free to pursue CEQA claims based on a local government approval of General Plans, and other development projects. However, the settlement with San Bernardino County provides a potential framework for how local agencies can address climate change issues to avoid litigation.
The settlement with the Attorney General does not resolve a separate lawsuit filed against the County by environmental groups. In addition, under the CEQA amendments, CEQA Guidelines for the evaluation and feasible mitigation of greenhouse gas emissions are not required to be adopted until the end of 2009. Thus, a large degree of uncertainty still exists for local governments and developers in determining how global warming impacts should be evaluated, and feasibly mitigated, in a CEQA document.