Transcript CEQA - Sierra Water Workgroup

LEGAL ASPECTS OF CLIMATE CHANGE
&
USING CEQA TO SUPPORT BETTER PROJECTS
Douglas P. Carstens
Chatten-Brown & Carstens LLP, Hermosa Beach
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CEQA requires a close look at alternatives and
mitigation that can reduce greenhouse gas
pollution and the risk of climate change.
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By enacting SB 97 in 2007, California’s lawmakers
expressly recognized the need to analyze greenhouse gas
emissions as a part of the CEQA process. Amendments to
the CEQA Guidelines were adopted that clarified several
points:
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Lead agencies must analyze the greenhouse gas
emissions of proposed projects, and must reach a
conclusion regarding the significance of those
emissions. (See CEQA Guidelines § 15064.4.)
When a project’s greenhouse gas emissions may be
significant, lead agencies must consider a range of
potential mitigation measures to reduce those
emissions. (See CEQA Guidelines § 15126.4(c).)
Lead agencies must analyze potentially significant
impacts associated with placing projects in hazardous
locations, including locations potentially affected by
climate change. (See CEQA Guidelines § 15126.2(a).) (?)
Lead agencies may significantly streamline the analysis
of greenhouse gases on a project level by using a
programmatic greenhouse gas emissions reduction
plan meeting certain criteria. (See CEQA Guidelines §
15183.5(b).)
CEQA mandates analysis of a proposed project’s
potential energy use (including transportation-related
energy), sources of energy supply, and ways to
reduce energy demand, including through the use of
efficient transportation alternatives. (See CEQA
Guidelines, Appendix F.)
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* Chevron applied for the necessary
permits to construct a project that
would replace manufacturing
facilities at its refinery.
* At first, the EIR refused to even
acknowledge the environmental
significance of greenhouse gas
emissions and the effect of those
emissions on global warming.
Communities for a
Better Environment
v.
City of Richmond
(2010)
* After numerous objections, the EIR
acknowledged "that the Proposed
Project's estimated new emissions
of 898,000 metric tons per year of
GHGs [greenhouse gases] prior to
mitigation would most likely be a
significant effect on the
environment."
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* However, the EIR provided only a perfunctory list of possible
measures to mitigate the Project's significant contribution to
greenhouse gas emissions and deferred identification of these
measures until after the CEQA process.
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Since the EIR merely proposed a generalized goal of no net
increase in greenhouse gas emissions and then set out a handful of
cursorily described mitigation measures for future consideration
that might serve to mitigate the 898,000 tons of emissions
resulting from the project, the court found the mitigation plan for
greenhouse gases to be deficient.
* The court stated, "the novelty of greenhouse gas mitigation
measures is one of the most important reasons that mitigation
measures timely be set forth, that environmental information be
complete and relevant, and that environmental decisions be made
in an accountable arena.”
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Some recent case law has delivered setbacks
to climate adaptation by restricting the ability
of public agencies to consider future
conditions related to climate change such as
sea level rise and flooding.
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* Project was a mixed-use real
estate development in the Playa
Vista area of Los Angeles.
Sea Level Rise
* CEQA states, “The purpose of an
Ballona Wetlands Land Trust
v.
City of Los Angeles
environmental impact report is
to identify the significant effects
on the environment of a
project....”
* Environmental groups claimed
the EIR failed to address the
impacts of sea level rise
resulting from global climate
change.
(2011)
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* The court said the purpose of an EIR is to identify
the significant effects of a project on the
environment, not the significant effects of the
environment on the project.
* The Court explained, “identifying the effects on
the project and its users of locating the project in
particular environmental setting is neither
consistent with CEQA’s legislative purpose nor
required by the CEQA statutes.”
* The Court concluded that EIR’s are not required to
discuss the impact of sea level rise on the project.
Ballona Wetlands Land Trust v.
City of Los Angeles cont’d
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* This case involved a challenge to
the County of Madera’s approval
of a mixed-use development
project.
* When a project exceeds a water
demand threshold, CEQA
requires compliance with certain
provisions of the Water Code.
Madera Oversight Coalition, Inc.
v.
County of Madera
(2011)
* Water Code section 10910
requires an agency considering a
project to obtain a written
assessment of water supply and
demand.
* This assessment must be
included in the EIR.
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* An EIR for a land use project must address the impacts
of likely future water sources, and the EIR's discussion
must include a reasoned analysis of the circumstances
affecting the likelihood of the water's availability.
* Under the 2007 California Supreme Court case
Vineyard Area Citizens for Responsible Growth, Inc. v.
City of Rancho Cordova, where it is impossible to
confidently determine that anticipated future water
sources will be available, CEQA requires some
discussion of possible replacement sources or
alternatives, and of the environmental consequences
of those contingencies.
* The Madera Oversight Coalition court concluded that
the nondisclosure of information concerning
uncertainties surrounding the project's source of water
resulted in the EIR’s discussion of the water supply
being inadequate.
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* The City of Santee certified
an environmental impact
report for a residential
development project, which
included a water supply
assessment.
Preserve Wild Santee
v.
* The project was located in a
declared high fire hazard
zone and the project site
has burned many times in
the past and it is expected
to burn again in the future.
City of Santee
(2012)
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The Court concluded the EIR’s analysis of water
supply was inadequate because of 1) the large
discrepancy between the EIR's estimation of the
project's water demands and the assessment's
estimation of the project's water demands; 2)
the EIR failed to adequately analyze this
discrepancy; and 3) the EIR did not discuss the
uncertainty as to the project’s stated receipt of
water.
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* The EIR also concluded the project's fire safety
impacts were less than significant because the
developer prepared a fire protection plan, which
included building structures with fire resistant
materials, creating landscaping zones around
structures, and managing the amount of potential
fuel in open space areas with prescribed burns or
goat grazing.
* However, when the City approved the project, it did
not adopt the open space fuel management portion
of the fire plan, and thus the court concluded there
was insufficient evidence to support the EIR's
conclusion the project did not have significant fire
safety impacts.
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