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King County (WA) First in the Nation To Require Climate Change Impacts To Be Considered During Environmental Review of New Projects

August 1, 2007

King County Executive Ron Sims has issued an Executive Order requiring County agencies to consider climate change impacts as part of their project review under Washington’s State Environmental Policy Act (“SEPA”). The Executive Order, which takes effect on September 1, 2007, can be viewed at this link. The Executive Order applies to any project that requires a SEPA checklist.

County Policy Based on Existing SEPA Authority

No new regulations or County statutes were adopted in adding the new requirements. Instead, Sims grounded his decision on the County’s existing SEPA authority. The Executive Order “require[s] and direct[s] all King County Departments, effective September 1, 2007, to require that climate impacts, including but not limited to those pertaining to greenhouse gasses, be appropriately identified and evaluated when such Departments are acting as the lead agency in reviewing the environmental impacts of private and public proposals pursuant to the State Environmental Policy Act.”[1]

The Executive Order cites the recent United States Supreme Court decision in Massachusetts v. EPA,[2] in which the Court determined that greenhouse gases (“GHG”) are an “air pollutant.” It also cites previous Executive Orders under which County departments were directed to “employ increasingly aggressive strategies” and “innovative environmental management,” including “coordinated strategies to mitigate and adapt to global warming.”[3] In 2007, the King County Council adopted the “2007 King County Climate Plan,” reflecting expert projections that climate change would generate a decline in snowpack, increases in winter streamflows and increased flood events.

Plan is to Collect Emissions Data – Mitigation of Impacts to be Deferred Until County Comprehensive Plan is Updated.

Contacted regarding the County’s plans for implementation of the new policy, Sims’ Deputy Chief of Staff, Jim Lopez, stated that County agencies would ask project proponents to supply information on transportation, energy usage and other impacts of proposed projects using the County’s existing SEPA checklist. Lopez said there is no current plan to require project proponents to take action to mitigate the impacts identified. Instead, development of emission thresholds and mitigation requirements will be undertaken in connection with the County’s upcoming 2008 update of its Comprehensive Plan. That update process will begin in September 2007 and run through 2008. Lopez said that the County intends to use the update process as a way to undertake outreach to groups affected by the new policy and to solicit and incorporate stakeholder involvement.[4]
Some of that outreach has already begun. David Hoffman, King County Coordinator for the Master Builders Association, said that he and other representatives of the Master Builders have already had meetings with King Count staff, and that additional meetings are planned for later this month. Mr. Hoffman reported that County staff was receptive to the input from builders who were already trying to implement Green Building standards.

County’s Action May Be an Indication of New Wave of Mitigation Requirements Based on Climate Change

Sims characterized the new Executive Order as a warning shot to the rest of the state: “Every jurisdiction is on notice now,” said Sims, in issuing the directive. He pointed to the adoption by the Washington legislation earlier this year of ESB 6001 and said that the County’s action would be necessary in order to comply with the limits set in that statute: “Whether it’s the city of Seattle or the state of Washington or anybody else, they've got to do this now. We don’t think that people have actually thought that through.”[5]

King County Seeks To Provide Template for Other Counties and Local Governments

This past July, the County, in partnership with the Sierra Club, helped to launch the “Cool Counties Climate Stabilization Initiative” as an attempt to combat global warming. The Declaration can be viewed here. Lopez said that it is King County’s intention to provide a template for similar regulations to be adopted by other counties who have signed up as part of the “Cool Counties” initiative.[6]

Massachusetts Takes a Similar, but Somewhat More Limited Approach

King County is not the only jurisdiction nationally to require environmental review of climate change impacts. The state of Massachusetts issued administrative regulations in April 2007 under which developers and state agencies are required to quantify GHG emissions and assess GHG mitigation measures in their environmental review documents under the Massachusetts Environmental Policy Act (“MEPA”).[7] Massachusetts’ regulations, which have been issued for public comment, can be viewed here. As currently drafted, the regulations are applicable to: (1) projects where the state is the project proponent or is providing financing; (2) private projects that require a state Air Quality Permit; or (3); private projects that will generate a certain number of new vehicle trips per day.[8]

By contrast, the new Executive Order requires an inventory of climate change impacts for every project that requires submittal of a SEPA checklist. This broad scope has generated concerns on the part of the building industry. David Hoffman, of the Master Builders, noted that the scope of the new Executive Order pushes King County beyond any other state or local jurisdiction in the country, and has moved the County beyond Massachusetts’ draft regulations.

In addition to county government, Seattle and a number of other cities have been addressing climate change in a variety of ways. 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.[9] Portland, Oregon adopted a global warming action plan in 1993, which included goals targeting land use planning, energy efficiency, renewable energy, solid waste and recycling and urban forestry.[10] The plan has resulted in a 65% increase in public transit ridership, doubling of bicycle commuting, a recycling rate of 57% and the planting of 750,000 trees.[11] The City of Seattle has led the nation’s cities in addressing climate change, launching a national effort to obtain commitments to reduced emission goals and itself adopting goals of increasing public transit, expanding bike and pedestrian infrastructure, implementing a new commercial parking tax, and maintaining Seattle City Light (the City’s electric utility) at zero net greenhouse gas emissions.[12]

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.[13]

Questions Remain as Policy Is Implemented

As the County starts its outreach and obtains input from stakeholders, a number of issues will need to be addressed to implement the new Executive Order. A few of those issues are:

  • What constitutes an impact? With no definition of a “climate impact,” the Executive Order is unclear regarding whether it requires information regarding “upstream impacts” (for example, from particular building materials), “mid-stream impacts” (i.e., impacts generated by the construction of the project itself) or “downstream impacts” (for example, increased vehicle trips associated with development).
  • Vesting issues. Traditional vesting rules do not apply until a threshold decision is made under SEPA. Because the regulatory requirements under this policy will be in flux for up to 16 months, it is unclear whether vesting will be available under the new Executive Order.
  • Reliability of information. Without a clear indication of what information the County is seeking, it will be extremely difficult for project proponents to know what data to collect and submit in connection with their SEPA checklists.
  • What will be the regulatory impact? While the County is currently only seeking information, there is no doubt that the ultimate purpose of the policy is to develop thresholds and regulatory limits that will be imposed on new development. It remains unclear, however, whether the regulatory focus will be on mitigation, for example through cap and trade, or through an outright reduction of impacts.
  • Concurrency, Impact Fees and Mitigation. Under current County policy, transportation impacts generate concurrency requirements which generally require road improvements and traffic signals. But true mitigation could require an overall reduction of vehicle trips, instead of building more infrastructure. Sims signaled this change in announcing the Executive Order, predicting that greenhouse-gas restrictions will lead to more public transportation and less emphasis on adding capacity to highways.[14] Jim Lopez agreed that this shift would constitute a major change in the way the County addresses transportation impacts from new development.[15]

Answering these and other questions and the development of new regulations will be part of the County’s outreach and stakeholder involvement process. In the interim, County agencies will begin collecting information under the new policy, starting next month.

[1] Executive Order at 3.

[2] __ U.S. ___, 127 S.Ct. 1438 (April 2, 2007).

[3] The quoted language comes from prior King County Executive Orders PUT 7-5, 7-7 and 7-8.

[4] Author’s interview with J. Lopez (July 30, 2007).

[5] “Sims takes step to limit emissions,” Seattle Post Intelligencer (June 28, 2007).

[6] Author’s interview with J. Lopez (July 30, 2007).

[7] See Massachusetts Executive Office of Energy and Environmental Affairs Greenhouse Gas Emissions Policy (April 23, 2007). MEPA is codified at Mass. Gen. Laws, ch. 30, § 61, et seq.

[8] For private office projects, the regulations apply if the project will generate 3,000 new vehicle trips a day; for mixed-use projects, the regulations apply if the project will generate 6,000 new vehicle trips a day, and for all other private projects, the regulations apply if the project will generate 10,000 or more new vehicle trips per day.

[9] 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: Strategies for Cities to Address Climate Change. A Casebook for a Practical Approach” (April 2007) (copy in author’s possession).

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

[11] Id. at 6.

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

[13] See Creating a Favorable Climate, cited in full in note 9.

[14] See Seattle Post-Intelligencer article, cited in Note 5.

[15] Author’s interview with J. Lopez (July 30, 2007).

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