In enacting SB 97, the California Legislature mandated that the Natural Resources Agency adopt new guidelines for the mitigation of greenhouse gas (“GHG”) emissions or the impacts of those emissions. Consistent with that directive, the Natural Resources Agency on December 30, 2009 adopted final amendments to the Guidelines for the California Environmental Quality Act (CEQA) to address GHG emissions impacts. Prior to this new rulemaking, substantial discrepancies existed with respect to the manner in which California lead agencies (i.e., those State and local agencies with authority to approve development projects following environmental review) evaluated GHG emissions and potential impacts from those emissions. However, the new amendments for the first time provide some consistency with respect to the substantive GHG-related areas to be covered in a CEQA analysis. Yet at the same time, the amendments preserve the discretion CEQA typically affords lead agencies with respect to the methodology to be used and the conclusions to be reached in such an analysis.
Lest there be no further confusion as to whether a CEQA analysis must include an evaluation of GHG emissions impacts, new amendments to Appendix G (which lists the questions that a lead agency should ask in an Initial Study) mandate that lead agencies the following questions:
“Would the project:
- Generate greenhouse gas emissions, either directly or indirectly, that may have a significant impact on the environment?
- Conflict with an applicable plan, policy or regulation adopted for the purpose of reducing the emissions of greenhouse gases?”
However, the new amendments continue to provide lead agencies with wide discretion as to how to answer these questions. For example, new CEQA Guidelines section 15064.4 makes clear that the determination of the significance of GHG emissions calls for a “careful judgment” by the lead agency based on a good-faith effort to describe, calculate or estimate the amount of GHG emissions to the extent possible on scientific and factual data. But the new amendment also states that the lead agency shall have discretion to determine whether to employ a particular “model or methodology,” or whether to instead rely on a “qualitative analysis or performance based standards.”
Similarly, after making its “good-faith” estimate of GHG emissions, the lead agency must assess – using its own discretion – the significance of those GHG emissions based on, at minimum, the following three factors:
- The extent to which the project may increase or reduce GHG emissions as compared to the existing environmental setting;
- Whether emissions would exceed a threshold of significance that the lead agency determines applies to the project; and
- The extent to which the project complies with regulations or requirements adopted to implement a statewide, regional, or local plan for the reduction or mitigation of GHG emissions.
New amendments to CEQA Guidelines section 15126.2 also direct lead agencies to analyze potential climate change-related hazards (such as coastal flooding and wildfires) that might impact people brought to the area by a project. But little guidance regarding these topics is provided in the new amendments.
In addition, continuing CEQA’s traditional approach of requiring lead agencies to mitigate environmental impacts to the extent feasible, the new amendments to Guidelines section 15126.4 state that lead agencies must consider feasible means, supported by substantial evidence and subject to monitoring or reporting, to mitigate the significant impacts resulting from GHG emissions. Among other possible mitigating features, the new amendments to CEQA Guidelines Appendix F (which generally requires that an EIR analyze a project’s impacts on energy usage) now state that an EIR should analyze the potential of siting, orientating and designing a project to minimize energy consumption, conserve water and reduce solid waste generation.
Despite the breadth of new analyses required by the new amendments, lead agencies may still streamline their GHG-related analyses based on prior studies. For example, pre-amendment CEQA Guidelines section 15130(d) provided that when considering a project’s cumulative impacts, a lead agency may rely on previously approved land use documents such as general plans, specific plans and local coastal plans, and may tier off environmental impact reports (EIRs) previously certified for such plans. The new amendments identify two additional plans that an agency may rely on when considering cumulative impacts: (1) regional transportation plans and (2) plans for the reduction of GHGs. Indeed, such plans may already contain information regarding transportation-related GHG emissions that could be useful in a cumulative impacts analysis, and future regional transportation plans will include strategies aimed at creating sustainable communities and projections of the region’s GHG emissions and resulting impacts. Similarly, new CEQA Guidelines section 15183.5 also confirms that a lead agency may streamline its environmental analysis of GHG impacts by tiering off existing plans to reduce impacts from GHG emissions at the programmatic level, so long as the project at issue complies with the requirements set forth in the relevant plan. New amendments to CEQA Guidelines section 15064(h)(3) also state that where a project will comply with the requirements of a previously approved GHG emissions plan or mitigation program, the lead agency may determine that the project’s incremental contribution to GHG emissions is not cumulatively considerable (and thereby avoid a further cumulative impacts analysis).
In light of the new amendments to the CEQA Guidelines, one thing is clear: although impacts from GHG emissions should be assessed in new CEQA documents, that does not mean such impacts should be treated any differently than any others. In fact, lead agencies must undertake the same type of approach toward GHG emissions as toward all other analyses, including discretion with respect to methodologies and conclusions.
The final amendments to the CEQA Guidelines adopted by the Natural Resources Agency regarding GHG-related emissions impacts can be found at: http://ceres.ca.gov/ceqa/docs/Adopted_Text_of_SB97_CEQA_Guidelines_Amendments.pdf.