Environmental Law Alert: Court of Appeal Issues First Published Decision Regarding Greenhouse Gas Mitigation Under CEQA
Communities for a Better Environment v. City of Richmond (April 26, 2010)
First District Court of Appeal Case No. A125618
The First District Court of Appeal has issued the first published opinion regarding the adequacy of greenhouse gas (GHG) emissions analysis and mitigation of those emissions in an Environmental Impact Report (EIR) prepared pursuant to the California Environmental Quality Act (CEQA) (Pub. Res. Code § 21000, et seq.). The case involved the adequacy of an EIR for the Chevron Energy and Hydrogen Renewal Project (Project), certified by the City of Richmond (City) on July 17, 2008. The Court concluded that the EIR was inadequate because it failed to identify how it quantified its GHG emissions, improperly deferred mitigation for impacts associated with those emissions, and failed to quantify how successful mitigation would be measured. The Court held that GHG emissions must be assessed and, where significant, must be mitigated at the time the project is approved and not deferred until some future time. The formulation of mitigation targets must be defined prior to project approval to allow the public and interested agencies to participate in that process.
The Chevron Richmond Refinery (Refinery) processes crude oil into fuel and oil products for various types of vehicles. The Project proposed to increase production of gasoline that meets California Air Resources Board (CARB) standards, to be sold in California, with an equivalent decrease in production of gasoline that does not meet CARB standards. Although the Project would not increase the Refinery's consumption of crude oil, it involves equipment and facilities replacement, and upgrades intended to improve its ability to process a varied mix of crude oil types.
Petitioner Communities for a Better Environment challenged the adequacy of the EIR on numerous grounds, including a claim that the EIR improperly deferred mitigation for GHG emissions.
The Court's Opinion
With respect to GHG emissions, the Court reviewed the process by which the City analyzed this impact. The Court noted that the draft EIR circulated by the City declined to reach any conclusion regarding the significance of impacts associated with GHG emissions. In response to comments on the draft EIR, the final EIR acknowledged the environmental significance of GHG emissions and their relationship to climate change, but still avoided determining whether the Project's contribution of GHG emissions was significant. Instead, the City stated in the final EIR that such a conclusion was too speculative. Following significant public concern about that conclusion, the final EIR was amended to conclude that the Project's contribution of GHGs would "most likely be a significant effect on the environment." The City then proposed mitigation measures to ensure that the Project would result in no net increase in GHG emissions as compared to the current operations. The operative mitigation measure provided: "No later than one (1) year after approval of this Conditional Use Permit, Chevron shall submit to the City, for approval by the City Council, a plan for achieving complete reduction of GHG emissions up to the maximum estimated Renewal Project GHG emissions increase over the baseline …."
The Court concluded that this measure resulted in improper deferral of mitigation. The Court reviewed numerous CEQA opinions regarding deferred mitigation, noting that deferral of mitigation may be acceptable where the record supports that the future mitigation is feasible and the lead agency is committed to implementing it. Here, the Court concluded that the EIR provided little or no information about how GHG emissions were calculated, offered no assurance that the plan would achieve a net-zero standard, and provided no criteria against which to measure success. The Court concluded that the City's delay in quantifying the GHG impacts was the reason the City was unable to gather adequate information to develop specific mitigation measures. Thus, the Court admonished: "The solution was not to defer the specification and adoption of mitigation measures until a year after Project approval; but, rather, to defer approval of the Project until proposed mitigation measures were fully developed, clearly defined, and made available to the public and interested agencies for review and comment."
This opinion is significant because it represents the first published opinion regarding the adequacy of GHG analysis under CEQA. The decision, however, does not digress from standard CEQA principles, but applies those principles to the GHG issue. Here, the City had failed to fully assess the impacts associated with GHG emissions, which the Court concluded affected the City's ability to develop appropriate mitigation. The City's failure, to be fair, was likely due to the fact that there was no accepted threshold standard at the time. The decision is a reminder that GHG emissions are now a key component of any CEQA analysis, and a full assessment of impacts associated with such emissions must be incorporated into the initial drafts of CEQA documents. The Court did not reject the goal of a zero net increase, but asserted that mitigation measures must be identified and well-defined—prior to the lead agency's approval of the project.
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