I recall that Mike Zischke, co-author of CEB’s excellent CEQA treatise, used to be fond of saying the “normal” or “usual rules” for analyzing cumulative impacts should apply to analysis of a project’s greenhouse gas (GHG) emissions under CEQA. As underscored most recently by Governor Brown’s April 29, 2015 Executive Order B-30-15, the law, policy and science related to GHGs and climate change are evolving rapidly. In the face of such rapid change, is it possible that the “usual rules” are in flux or no longer apply? At the very least, Governor Brown’s much-publicized recent executive order highlights that CEQA analysis of GHG impacts under the “usual rules” has “evolved” into a state of considerable uncertainty and confusion.
Brief Background: GHGs Viewed Through CEQA’s Analytic Lens
In 2007, SB 97 amended CEQA to require OPR to develop proposed CEQA Guidelines for mitigation of GHGs or their effects, and to periodically update those guidelines to incorporate new information or criteria established by the California Air Resources Board (CARB) pursuant to AB 32 – the landmark Global Warming Solutions Act of 2006 (Health & Safety Code, § 38500 et seq.). OPR did so and the GHG guidelines became effective in 2010.
Essentially, GHG emissions causing global warming and climate change represent significant cumulative impacts requiring analysis under CEQA on a project-by-project basis – whether the project under review is statewide, regional or local in nature and whether it is a plan, program or site-specific project. A project’s incremental effect, though individually limited, may be cumulatively considerable, meaning “that the incremental effects of an individual project are significant when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects.” (CEQA Guidelines, § 15064(h)(1).) An individual project’s GHG emissions must therefore be analyzed to determine whether they make a “cumulatively considerable” contribution to climate change/global warming and should accordingly be considered a significant project effect requiring analysis and mitigation to the extent feasible. (§ 15064.4(a), 15064(h)(1), (3), (4).)
CEQA requires – consistent with its “usual rules” – that a lead agency exercise careful judgment in determining the significance of a project’s GHG emissions. (§ 15064.4(a), citing § 15064.) It instructs that the lead agency should consider various factors, including: (1) the extent to which the project increases or reduces GHG emissions compared to the existing environmental setting; (2) whether project emissions exceed a threshold of significance the lead agency determines applies; and (3) the extent to which the project complies with regulations adopted to implement statewide, regional or local plans for GHG reduction or mitigation. (§ 15064.4(b)(1)-(3).) A lead agency may adopt a threshold of significance adopted or recommended by experts if its decision to do is supported by substantial evidence. (§ 15064.7(c).) A lead agency may also determine a project’s incremental contribution to GHG impacts is not cumulatively considerable if it will comply with regulations or requirements in, or adopted to implement, a statewide, regional or local plan for the reduction of GHG emissions. (§ 15064.4(b)(3), 15064(h)(3).) However, in order for a lead agency to rely on such regulations or requirements (1) they must be adopted by the relevant public agency through a public review process to implement, interpret, or make specific the law enforced by the public agency and must reduce or mitigate the project’s incremental contribution of GHG emissions; and (2) the lead agency relying on the plan, regulation or program should explain how implementing its particular requirements ensures that the project’s incremental contribution is not cumulatively considerable. (§ 15064(b)(3).) If there is...
