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Settlement Requires California County to Inventory and Mitigate Greenhouse Gases

September 5, 2007

The State of California and San Bernardino County have settled a landmark climate change lawsuit which requires the County to inventory and mitigate greenhouse gas (GHG) emissions associated with its land use planning decisions.[1] California Attorney General Jerry Brown filed the lawsuit under California’s environmental review statute, known as CEQA, in April 2007, alleging that San Bernardino County’s comprehensive land use planning update failed to quantify and mitigate GHG emissions, and failed to explain how population growth predicted under the plan would impact the State’s ability to attain the GHG reduction targets mandated by California’s Global Warming Solution Act (AB-32).[2]

The lawsuit proved so controversial that critics, for a time, delayed passage of the state budget in the hope of obtaining a prohibition on CEQA climate change lawsuits.[3] The budget narrowly passed after the California legislature passed Senate Bill 97 (SB-97), which established a limited and temporary ban on some CEQA climate change litigation. The ban applies only to certain publicly-funded transportation and flood control projects, and expires in 2010.[4] The prohibition on CEQA climate change litigation in SB-97 would not have barred the State’s lawsuit against San Bernardino County and is unlikely to deter Attorney General Brown’s efforts to address climate change issues through CEQA. Indeed, Attorney General Brown has sent comment letters under CEQA addressing climate change issues to at least eleven other California counties.[5]

Significantly, SB-97 does not bar CEQA climate change challenges to private development projects. There are at least three CEQA lawsuits currently pending in California superior court challenging the adequacy of climate change analyses for private development projects.[6] These lawsuits challenge a proposed 1,500 unit residential development in Desert Hot Springs, a 2,700 unit residential/commercial development in Banning, and a commercial composting facility in Hinkley. In each case, plaintiffs allege that the CEQA analyses supporting the proposals failed to assess GHG emissions and discuss potential GHG mitigation measures.

Outside of California, a number of jurisdictions, including the State of Massachusetts and King County, Washington, now require a GHG analysis in environmental analyses submitted under their environmental review statutes.[7] And, a growing body of case law under the National Environmental Policy Act requires federal agencies to assess GHG emissions associated with energy infrastructure projects.[8]

Background

Last fall, California became the first state to require targeted GHG emission reductions. Under AB-32, California will implement a statewide GHG emission cap in 2008, designed to reduce emissions to 1990 levels by 2020.[9] The GHG reduction targets led to the CEQA litigation, as the State sets out to meet the ambitious emission reduction goals it established in AB-32. While reductions can be expected to come from the energy and transportation sector, a large percentage (up to 30%) of GHG emissions are estimated to come from residential and commercial buildings.[10]

The County’s General Plan Update

California’s land use laws require municipalities and counties to adopt comprehensive, long-term plans to guide development and growth.[11] These planning blueprints, known as general plans, must address a number of elements, including land use, transportation, housing, and conservation.[12] The conservation element must address, among other things, the effects of development on natural resources.[13] Additionally, municipalities and counties must prepare an environmental impact report (EIR) under CEQA which assesses the reasonably foreseeable environmental effects of the growth and development predicted in a general plan and adopts feasible measures to mitigate those impacts.[14]

In 2002, San Bernardino County began the process of updating its General Plan to guide development through the year 2030.[15] The County, which is the largest in the continental United Sates, covers over 20,000 square miles and has experienced significant population growth in recent decades.[16] From 1980 to 2000, the County’s population increased approximately 86% from 919,000 to 1.7 million.[17] Between 2000 and 2020, the County’s population is expected to increase over 60% to 2.8 million people.[18]

In September 2006, the County released a draft EIR addressing its proposed General Plan update.[19] While the draft EIR discussed certain air pollution impacts, it did not analyze GHG emissions or other climate change impacts associated with growth predicted under the revised General Plan. The State and environmental NGOs submitted comments requesting that the County quantify current GHG emissions and predicted increases, adopt measures to mitigate such emissions, and analyze the effects of emission increases on the GHG reductions mandated by AB-32.

San Bernardino County released its final EIR in February 2007, but declined to address climate change impacts. In response to public comments on GHG emissions and climate change, the County’s final EIS stated:

As of the writing of this Final EIR, the agencies with jurisdiction over air quality regulation and greenhouse gas emissions (CARB, the South Coast AQMD, and the Mojave Desert AQMD) have not established regulations, guidance, methodologies, significance thresholds, standards, CEQA protocols or mitigation measures that specify the type of analysis, or mitigation measures, that can be included in a program EIR, or other CEQA document. In addition, no emission inventories or emissions baseline have been established that would allow for an appropriate analysis to evaluate an existing setting and impact analysis for the proposed implementation of the San Bernardino General Plan due to climate changes. The County of San Bernardino will adhere to the rules and guidelines currently in place at the local, state and federal level, and will also adhere to any future regulations regarding global warming resulting from the legislative approval of AB 32.[20]

On March 13, 2007, the San Bernardino County Board of Supervisors approved the General Plan update and certified the final EIR under CEQA.

California Challenges the County’s General Plan Update

On April 13, 2007, Attorney General Brown filed suit in San Bernardino County Superior Court, challenging the County’s environmental review.[21] Specifically, the State alleged that the County’s final EIR did not comply with CEQA because it did not disclose GHG emissions reasonably expected to result from implementing the General Plan update, and failed to compare emission increases with the GHG reductions mandated by AB-32. Furthermore, the State alleged that the final EIR failed to identify and adopt mitigation measures to minimize impacts related to global warming. Two days earlier, the Center for Biological Diversity filed a similar lawsuit alleging, among other things, that the County’s final EIR failed to address global warming impacts.[22]

The Settlement

On August 21, 2007, the State and San Bernardino County finalized a settlement under which the County would amend the General Plan and prepare a GHG Reduction Plan.[23] In the GHG Reduction Plan, the County must:

  • Identify all known, or reasonably known, sources of GHG emissions;
  • Estimate 1990 GHG emission levels;
  • Inventory current GHG emission levels;
  • Estimate GHG emissions in 2020 attributable to the County’s discretionary land use decisions and internal government operations; and
  • Establish targets and identify mitigation measures for reducing GHG emissions attributable to the County’s discretionary land use decisions and internal government operations.

The County has thirty months to prepare the GHG Reduction Plan and associated environmental review under CEQA. California agreed to help raise $500,000 in federal or state funds to help the County implement the GHG Reduction Plan.

At a press conference announcing the settlement, Attorney General Brown stated that “San Bernardino now sets the pace for how local government can adopt powerful measures to combat oil dependency and climate disruption.” “This landmark agreement establishes one of the first greenhouse gas reduction plans in California,” Brown said. “It is a model that I encourage other cities and counties to adopt.”[24]

[1] The settlement agreement is available at: http://ag.ca.gov/cms_pdfs/press/2007-08-21_San_Bernardino_settlement_agreement.pdf.

[2] See California Global Warming Solutions Act (AB-32).

[3] Margaret Roosevelt, “State reaches settlement on gas emissions” Los Angeles Times (Aug. 22, 2007).

[4] See Senate Bill No. 97 (passed August 21, 2007). SB-97 provides that failure to adequately assess GHG emissions does not create a CEQA cause of action for: (1) transportation projects funded under California’s Highway Safety, Traffic Reduction, Air Quality and Port Security Bond Act of 2006, or (2) projects funded under California’s Disaster Preparedness and Flood Prevention Bond Act of 2006. SB-97 also requires the State to develop guidelines by 2009 on what parties must do to assess and mitigate GHG emissions under CEQA.

[5] Office of the Attorney General Press Release (Aug. 21, 2007).

[6] Center for Biological Diversity v. City of Desert Hot Springs, Riverside County Superior Court (challenging EIR for 2,700 unit residential/commercial development); Center for Biological Diversity v. City of Banning, Riverside County Superior Court (challenging EIR for 1,500 unit residential development); Center for Biological Diversity v. San Bernardino County, San Bernardino County Superior Court (challenging permit for commercial compost facility).

[7] See Massachusetts Becomes First State to Require Developers to Quantify and Mitigate Greenhouse Gas Emissions, Marten Law Group Environmental News (May 9, 2007); King County (WA) First in the Nation To Require Climate Change Impacts To Be Considered During Environmental Review of New Projects, Marten Law Group Environmental News (Aug. 1, 2007).

[8] California Courts to Decide Whether Climate Change Impacts Must Be Assessed and Mitigated in New Project Development, Marten Law Group Environmental News (May 9, 2007).

[9] For more details on AB-32, please see California Sets Mandatory Limits on Greenhouse Gas Emissions, Steps Out Ahead of EPA, Marten Law Group Environmental News (Sept. 20, 2006).

[10] http://www.usgbc.org/DisplayPage.aspx?CMSPageID=291.

[11] Cal. Gov’t Code § 65300.

[12] Id. at § 63302.

[13] Id. at § 63302(d).

[14] Cal. Pub. Res. Code § 21061; Cal. Code Regs., title 14, § 15126.4 subd. (a)(1)(B).

[15] The County adopted its previous general plan in July 1989.

[16] San Bernardino County General Plan at I-11.

[17] Id. at VI-1.

[18] Id.

[19] The draft EIR is available at: http://www.co.san-bernardino.ca.us/landuseservices/General%20Plan%20Update/Environmental%20Review/.

[20] Final EIR at Section C. The final EIR is available at http://www.co.san-bernardino.ca.us/landuseservices/General%20Plan%20Update/Environmental%20Review/.

[21] State of California v. San Bernardino County, San Bernardino Co. Super. Court (filed Apr. 13, 2007).

[22] Center for Biological Diversity v. San Bernardino County, Case No. 0700295 (filed Apr. 11, 2007). In addition to the global warming challenges, the Center for Biological Diversity alleged that the General Plan update failed to protect communities from wildfires and protect natural resources. Those claims are still pending.

[23] See Settlement Agreement, supra n.1.

[24] Office of the Attorney General Press Release, supra n.5.

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