Recent Climate Change Decisions Will Affect Your Project in California

The potential impact of climate change and green house gas (GHG) is a matter of controversy and doubt in much of the nation and the world. Most governments are still wrestling with whether and how they will respond to climate change. That is no longer the case in California. For developers and local governments the climate change future is now. On April 26^th the First District Court of Appeal decided the case of Communities for a Better Environment v City of Richmond, (Chevron real party in interest) Case # 125618, holding that an Environmental Impact Report (EIR) must evaluate the potential impact of a project's GHG emissions on climate change. The court also said that if the GHGs are cumulatively significant, then at the time the EIR is approved feasible, effective, and verifiable mitigation measures must be imposed. Two months later, the Bay Area Air Quality Management District (BAAQMD) issued new Air Quality Guidelines requiring evaluation of GHGs, setting Thresholds of Significance and identifying approved mitigation measures.

What are the impacts of these two events? It means new projects must now address climate change issues in their design, permitting and operations. For example, land use development plans and projects now must be screened for their potential climate change impacts through both "direct and indirect" GHG emissions. Land use projects include residential, commercial, industrial and public land uses and facilities.

The scope of the requirement to consider "indirect" emissions is not immediately apparent. The BAAQMD Guidelines explain the breadth of this new obligation. Now as part of screening a project all potential construction-related and operational-related GHGs must be quantified and disclosed. This has never been done before. Under the Guidelines, "direct" emissions from operations include, for example; onsite combustion of natural gas used in furnaces and boilers, emissions from industrial processes and fuel consumption from vehicles. "Indirect" emissions include emissions from energy production to power the project and added energy needed to power the water conveyance to the project. Most project proponents have not considered in their project planning power plant emissions in a plant hundreds of miles away. And although for several years project planners have had to show that adequate water is available for a project, it is a new requirement to consider and mitigate pumping plant power usage needed to provide water to the project. These are broad new categories of emissions responsibility.

Once all area emissions, vehicle emissions and indirect emissions are quantified, that sum is compared to the BAAQMD's Thresholds of Significance. If any of those Thresholds are exceeded, environmentally superior alternatives to the project, including the "no project" alternative, must be considered. Further, if the project goes forward then mitigation is required.

The BAAQMD prefers that project emissions be reduced to the extent possible on site. It remains unknown what mitigation a project has to provide for indirect emission increases far from the permitting jurisdictions' authority. What types of on site changes to a project may be required? Changing the mix of uses, supplying transit services, requiring telecommuting, increasing energy efficiency, and using different construction standards are just a few of the measures listed in the Guidelines. If the project cannot obtain sufficient mitigation on site, off site mitigation may be allowed; however there is no clear guidance for what off site criteria GHG mitigation must meet.

It is now certain, based on the new Guidelines and the new CBE case, that California projects that emit significant GHGs from this time forward must mitigate those emissions, and that the mitigation needs to be real, permanent through the duration of the project, enforceable and equal to the pollutant type and amount of the project impact being offset. In California the climate change future is now.

The above article is provided for informational purposes only. It is not legal advice, nor does it create an attorney-client or any other relationship. You should always contact an attorney for legal advice applicable to your particular situation.