December 3, 2015

Greenhouse gases complicate CEQA

By Damien M. Schiff Senior Attorney

On Monday, the California Supreme Court issued its decision in Center for Biological Diversity v. California Department of Fish & Wildlife.  The ruling overturns an important section of a voluminous environmental impact report prepared, under the California Environmental Quality Act, for the proposed Newhall Ranch development.  The project, located west of the City of Santa Clarita in southern California, would cover 12,000 acres and entail the construction of nearly 21,000 dwelling units for 58,000 people.  But the Supreme Court ruled 5-2 that the Department’s report inadequately assessed whether the project’s anticipated greenhouse gas emissions would materially affect the state’s ability to achieve the legislatively mandated goal of reducing statewide emissions to 1990 levels by 2020.**  (The majority also found fault with other aspects of the lower court’s decision upholding the project.)

Justice Ming Chin’s sage dissent highlights the failure of the majority opinion to acknowledge the degree of environmental review the project has already undergone, as well as the anti-growth sentiments motivating the CEQA petitioners in the case.  Justice Chin explained that the project “has been thoroughly reviewed over a period of many years, resulting in an extraordinarily thorough” report; indeed, the “portion concerning greenhouse gas emissions alone is hundred of pages long.”  The report was drafted, reviewed, commented upon, and revised over a five-year period.  A total of eight federal, state, and local agencies reviewed and approved it.  He therefore admonished the majority that “California’s environmental laws are not intended to prevent development that is needed to accommodate the state’s growing population.”  Rather, they merely seek informed decision-making.  And a more informed decision than that approving the Newhall Ranch project would be, to his lights, difficult to imagine.

Moreover, the majority’s decision, Justice Chin noted, does not even plausibly vindicate environmental protection.  “The 58,000 or so people the proposed project is intended to accommodate will not just go away.  They will be living and working somewhere.  And that somewhere will undoubtedly be far less green than this project promises to be.”  Thus, the “longer the project is delayed, the longer the workplaces and residences of 58,000 people will be emitting business-as-usual amounts of greenhouse gases, rather than the greatly reduced amount projected under this project.”

Although the decision likely will only delay this project, it nevertheless will make the greenhouse gas component of all environmental impact reports substantially more difficult to draft, thereby raising costs for all development projects.

**CEQA requires that, before approval, all of a project’s significant impacts on the physical environment be disclosed and, if feasible, mitigated to insignificance.  Thus, the Court had to determine what amount of emissions would be high enough to be considered “significant.”  Interestingly, even the majority conceded that it doesn’t make much sense to base “significance” in this context on whether a project’s emissions would affect global temperatures:  “because of the global scale of climate change, any one project’s contribution is unlikely to be significant by itself.”  So the Court concluded that what is significant is whether a project might inhibit the state from meeting the A.B. 32 goal of reducing the state’s emissions to 1990 levels by 2020.  Assuming that to be a practicable standard, it’s still somewhat far removed from CEQA’s focus on physical impacts.  Even if the state achieves its A.B. 32 goal, such a reduction will have no measurable impact on global warming, and thus will result in no physical impact on California.  (Bjorn Lomborg estimates that, in the best-case scenario, US (not just California) climate policy will result, by 2100, in a reduction in global temperatures of just 0.096 degrees F). So, under the Newhall Ranch decision, legislative or bureaucratic goal setting that is merely related to the environment, but in and of itself does not affect the environment, nevertheless can convert otherwise insignificant project impacts into significant project impacts.

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