California Regulatory Alert: Office of Planning and Research Holds Workshop on Draft CEQA Guidelines for Greenhouse Gas Emissions
On January 8, 2009, the Office of Planning and Research ("OPR") released a preliminary draft of regulations that will implement the California Environmental Quality Act ("CEQA") with regard to evaluating, measuring and mitigating the potential greenhouse gas ("GHG") emissions of projects ("CEQA Guidelines"). OPR held public workshops to address the preliminary draft CEQA Guidelines on January 22 and 26, 2009.
OPR developed these draft CEQA Guidelines in response to Senate Bill 97, which directs OPR to prepare and transmit the draft CEQA Guidelines to the California Natural Resources Agency ("Resources Agency") by July 1, 2009. The Resources Agency must then certify and adopt the CEQA Guidelines by January 1, 2010.
The CEQA Guidelines are intended to provide assistance to lead agencies that must evaluate, quantify and mitigate a project's potential GHG emissions. Some of the more significant aspects of the draft CEQA Guidelines are described below.
Determining Significance of GHG Emissions
Notably, OPR has stated that it will not be recommending a method for lead agencies to use in setting a threshold of significance for potential GHG emissions created by a project. Rather, OPR has asked the California Air Resources Board to recommend a method for lead agencies to apply when setting thresholds of significance.
The preliminary draft CEQA Guidelines add a new section titled "Determining the Significance of Impacts from Greenhouse Gas Emissions." This section allows a lead agency to consider a number of factors to determine the significance of a project's potential GHG emissions, including the extent to which the project would help or hinder attainment of emission reduction goals set by Assembly Bill 32. Additionally, the draft CEQA Guidelines direct the lead agency to make a "good faith" effort to "describe, calculate or estimate" a project's potential GHG emissions. In making this effort, a lead agency would be allowed to either "use a model or methodology to quantify" the GHG emissions, or "rely on qualitative or other performance based standards" to estimate the significance of a project's potential GHG emissions. Some public commenters desire stronger language that would require each lead agency to derive a numerical amount representing a project's potential GHG emissions.
Additionally, the preliminary draft CEQA Guidelines provide that when adopting thresholds of significance for a potential environmental impact, lead agencies may consider thresholds of significance adopted by other public agencies and recommendations of others, provided that these thresholds are supported by substantial evidence, including expert opinions based on facts.
The preliminary draft CEQA Guidelines also provide that when a lead agency makes its statement of overriding considerations to approve a project with one or more significant impacts, the lead agency may consider local adverse environmental impacts in the context of the project's regionwide or statewide benefits. Some commenters have asked for additional constraints, such as a requirement that the regional or statewide benefits be environmental benefits, as opposed to economic or other nonenvironmental benefits.
Reliance on Other Plans
The draft CEQA Guidelines also encourage lead agencies to rely on Environmental Impact Reports prepared for a general plan, a regional plan or other program-level CEQA documents.
The draft CEQA Guidelines provide that lead agencies "should consider all feasible means" of mitigating GHG emissions by reducing the project's energy consumption, and list appropriate mitigation measures, including project design features, compliance with a previously approved plan or mitigation program to reduce GHG emissions, carbon sequestration and carbon offset purchases.
OPR also proposes to modify Appendix G, which may be used by lead agencies to determine whether a project will cause significant environmental impacts. The proposed modifications to Appendix G would ask lead agencies to consider (1) whether a project would create GHG emissions that would directly or indirectly have a significant impact, based on any threshold of significance, and (2) whether a project would conflict with any existing applicable agency plan, policy or regulation adopted for the purposes of reducing GHG emissions.
Although the deadline to submit comments to OPR on the preliminary draft CEQA Guidelines has expired, the Resources Agency will undertake formal rulemaking later this year and will hold additional public workshops to solicit further public comment on the proposed CEQA Guidelines.
For additional information regarding the CEQA Guidelines, please contact your attorney at Stoel Rives or any of the following:
Kristen T. Castaños at (916) 319-4674 or firstname.lastname@example.org
Barbara A. Brenner at (916) 319-4676 or email@example.com
Lee N. Smith at (916) 319-4651 or firstname.lastname@example.org
Rachael S. Phillips at (916) 319-4745 or email@example.com