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California Courts to Decide Whether Climate Change Impacts Must Be Assessed and Mitigated in New Project Developments

May 9, 2007

Recent litigation brought in California is seeking to force developers and permitting agencies to consider the climate change impacts of new development. These cases seek to require project proponents to assess and mitigate the greenhouse gas (“GHG”) emissions generated by their projects, and to require permitting agencies to include potential impacts from global warming in the background assumptions under which they review new projects.

Climate Change Cases under CEQA

The California Environmental Quality Act (“CEQA”)[1] has procedural requirements that are similar to NEPA, but also contains substantive provisions that prohibit agencies from authorizing actions with significant, unmitigated environmental impacts. Similar substantive authority exists under other state laws, including the Washington’s SEPA statute.[2] These substantive provisions have allowed plaintiffs to argue that state and local municipalities must require developers to mitigate the climate change impacts of any new development, and to include consideration of climate change in their review of permitting documents.

California’s adoption of statewide emission-reduction targets in 2006 supplied the basis for the State of California’s claims in State of California v. San Bernardino County.[3] After San Bernardino County issued its CEQA analysis for a comprehensive planning update that would guide future development in the County, both the State and environmental groups sued, claiming that the County violated CEQA by failing to assess how the substantial development anticipated by the plan would contribute to climate change[4] and by failing to adopt measures to mitigate the climate change impacts of future development in the County.[5]

In another case, NRDC v. Reclamation Board,[6] environmental groups are seeking to require a permitting agency to consider whether potential climate change impacts affect the viability of a development project. Plaintiffs allege that the Reclamation Board must consider how rising sea levels will exacerbate the environmental impacts of a 4,900 acre mixed-use development in Sacramento’s San Joaquin Bay Delta, a system of lowland islands created by myriad levees and natural and man-made sloughs.

The San Bernadino and NRDC cases are examples of how environmental plaintiffs are attempting to use litigation to force mitigation of GHG emissions. This same result can also be imposed through legislation or regulation, as the State of Massachusetts has recently done. See a companion article in this newsletter discussing the State of Massachusetts’ recent adoption of a statewide policy requiring state agencies and developers to take account of GHG emissions in projects.[7]

Other Local Actions

Many cities are already developing strategies to reduce GHG emissions. These include adopting regulations that directly affect new development, such as green building or zoning codes, or requiring compact design and mixed use development within urban areas.[8] The City of Boulder, Colorado adopted what may be the nation’s first “carbon tax,” which went into effect last month, under which the City’s utility customers are being charged a fee based on the number of kilowatt-hours of electricity used.[9] Boulder has also adopted comprehensive plan goals to reduce emissions by requiring more efficient buildings and multi-modal transportation within neighborhoods.[10] The City of Boise is encouraging construction of environmentally-friendly buildings, such as the LEED-certified Banner Bank building, which is only the 19th building worldwide to receive LEED’s platinum certification, the highest possible mark.[11]

The City of Austin, Texas adopted a “Climate Action Plan” which contains strategic elements such as the use of a “Compact City” and “New Urbanism” development approaches.[12] Portland, Oregon adopted a global warming action plan in 1993, which included goals targeting land use planning, energy efficiency, renewable energy, solid waste, recycling and urban forestry.[13] The City of Seattle also created a Climate Action Plan, which adopts goals of increasing public transit, expanding bike and pedestrian infrastructure, implementing a new commercial parking tax, and maintaining Seattle City Light at zero net greenhouse gas emissions.[14]

Many cities and counties have already have begun adopting “urban village” or other high density designations in their comprehensive plans and regulations that encourage mixed used development as a means of reducing vehicle trips. The imposition of impact fees to encourage GHG emissions reductions and revisions in zoning and building codes to encourage green construction, particularly LEED-certified buildings, are also being considered.[15]

Conclusion

Massachusetts’ adoption of its new Greenhouse Gas Policy and the recent litigation in California both signal that the rules for new projects are changing. These developments make it prudent for developers to begin to assess and be prepared to mitigate the climate change impacts of new projects. For their part, municipalities will need to take account of the impacts of climate change in their land use planning and development regulations – requiring mitigation of GHG emissions for new development, as well as adopting plans that are consistent with the states’ emission-reduction targets.

[1] CEQA is codified at Cal. Pub. Res. Code §§ 21000, et seq.

[2] Compare Cal. Pub. Res. Code § 21001 with Wash. Admin. Code § 197-11-660.

[3] San Bernardino Co. Super. Court (filed Apr. 13, 2007). The Center for Biological Diversity filed a similar challenge two days prior. See Center for Biological Diversity v. San Bernardino County, Case No. 0700295 (filed Apr. 11, 2007).

[4] The State also alleged that the County failed to assess how the significant population growth predicted in the land use update and the concomitant increase in GHG emissions will impact the State’s ability to meet the GHG reduction targets mandated in California’s GHG emission reduction legislation, AB-32.

[5] Two other pending cases involve allegations that local agencies failed to quantify GHG emissions when approving development projects. See Center for Biological Diversity v. San Bernardino County, San Bernardino Co. Super. Ct. (filed Mar. 29, 2007) (alleging County should have assessed GHG emissions when approving permit for commercial compost facility); Center for Biological Diversity v. City of Banning, Riverside Co. Super. Ct. (filed Nov. 21, 2006) (alleging County should have considered GHG emissions when approving 1,500 unit residential development).

[6] Sacramento County Super. Ct. Case No. 06CS01228 (filed Aug. 18, 2006).

[7] The Massachusetts Greenhouse Gas Emissions Policy (Apr. 23, 2007).

[8] For a thorough review of local government initiatives directed to climate change, see E. Mayer, “Creating a Favorable Climate: Strategies for Cities to Address Climate Change. A Casebook for a Practical Approach” (April 2007) (hereafter “Creating a Favorable Climate”) (copy in the authors’ possession).

[9] See K. Kelley, City Approves Carbon Tax in Effort to Reduce Emissions, The New York Times (November 18, 2006) at 1. Officials anticipate that the tax will add $16 a year to an average homeowner’s electricity bill and $46 for businesses.

[10] City of Boulder Climate Action Plan (September 2006) at 6, 17.

[11] Smart Growth News, The Idaho Statesman (July 12, 2006) at 1.

[12] City of Austin, Sustainability Report, at 41. In 1999, Austin required that five percent of local electricity come from renewable energy sources, a goal the city’s municipal utility has met by increasing purchases of solar and wind power. The Pew Center for Climate Change (cited in Creating a Favorable Climate at 15, n. 56).

[13] See ICLEI Local Governments for Sustainability, Global Warming Reduction Strategies Progress Report, Portland Oregon, Members in Action, at 3.

[14] The City of Seattle’s Climate Action Plan can be viewed online at Seattle Climate Action Plan.

[15] See Creating a Favorable Climate, cited in full in note 8.

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