• California's SB 375 and Other Recent Developments in CEQA and Climate Change
  • September 23, 2008
  • Law Firm: Bingham McCutchen LLP
  • Not surprisingly, climate change guidance, regulation and legislation are emerging at an accelerated pace. In California, the latest climate change policy development centers around Senate Bill 375. The bill, which has been approved by the Senate and Assembly and is awaiting Governor Schwarzenegger’s signature, is viewed as one of the most important land use bills in decades. SB 375 encourages regional land use planning that reduces vehicle use, and limits CEQA review for projects that comply.

    In other climate change news, the California Air Resources Board issued its draft scoping plan, which contains information that may be used in environmental analyses. The Governor’s Office of Planning and Research issued technical guidance on greenhouse gas evaluations in CEQA documents. Many agencies continue to rely upon CEQA guidance published by the Association of Environmental Professionals, while others are turning to the recommendations of the California Air Pollution Control Officers Association. Finally, recent court decisions emphasize the need for a careful approach to any environmental analysis of global warming.

    Read on for a summary of these recent developments.

    SB 375. SB 375 encourages planning on a regional scale, in a manner designed to reduce vehicle use and associated greenhouse gas emissions. It requires the Air Resources Board to provide greenhouse gas emissions targets for automobiles and light trucks for all regions of the state that have a metropolitan planning organization. Each organization must then adopt a sustainable communities strategy designed to achieve its assigned targets, or describe an alternate strategy that would achieve the targets. Once those plans and strategies are in place, SB 375 will also relax CEQA requirements for certain projects that implement the region’s sustainable communities strategy.

    Here are some of the important changes that would occur under SB 375:

    • Regional Emissions Targets. By 2010, the Air Resources Board must establish greenhouse gas emission reduction targets for each region that has a metropolitan planning organization. The targets are to focus on automobiles and light trucks, and must be established for the years 2020 and 2035. SB 375 does not set a numeric target. The senate bill analysis states: “This bill is built on faith that ARB will be able to set aggressive and appropriate targets.”
    • Traffic Models To Account for Land Use Relationships. SB 375 will require the California Transportation Commission to adopt guidelines for the development and use of travel demand models. These models are to assess the relationship between vehicle miles traveled and regional jobs/housing balances, proximity between complementary land uses, proximity to transit, and development density, rather than simply assuming that every trip associated with a development project is new or assuming all development generates trips at the same rate or length. These models will shape regional and local planning, as well as CEQA compliance.
    • Regional Transportation Plans. SB 375 will require that each regional transportation plan include a sustainable communities strategy. The sustainable communities strategy must include a development pattern, which, when integrated with the transportation network and other transportation policies, will reduce the greenhouse gas emissions from automobiles and light trucks to achieve the regional emissions targets. If it is not feasible to achieve the targets, the metropolitan planning organization must prepare an alternative planning strategy identifying the impediments to achieving the targets, and how the targets would be achieved through alternate development patterns, infrastructure or additional transportation measures or policies. SB 375 does not require cities or counties to conform their general plans to the sustainable communities strategy or the alternative planning strategy. The senate bill analysis states: “This bill is also built on faith that cities and counties will voluntarily implement the SCS or at least respond to regional political pressure to do so.”
    • Housing Needs Allocations. SB 375 requires that the aggregate regional housing needs assessment reflect the achievement of a feasible balance between jobs and housing within the region. The allocation of housing share to each individual city and county must be consistent with the sustainable communities strategy. SB 375 also includes new rules that apply when a city or county fails to complete rezoning sufficient to accommodate its share of regional housing needs; the city or county may be prohibited from denying housing developments located on sites the general plan slates for rezoning to accommodate affordable housing.
    • New CEQA Limitation For Transit Priority Projects. SB 375 defines a “transit priority project” as a mixed use project meeting specified ratios and densities that is located within one-half mile of a major transit stop or high-quality transit corridor identified in the regional transportation plan. Such a project can be exempt from an EIR requirement if a detailed laundry list of requirements is met.
    • New CEQA Limitation For Certain Residential Projects. SB 375 establishes a broad rule for projects with at least 75% of their square footage dedicated to residential uses. If such a project is consistent with a sustainable communities strategy or alternative planning strategy, and the project incorporates the mitigation measures required by an applicable prior environmental document, then the CEQA document for the project “shall not be required to reference, describe, or discuss (1) growth inducing impacts; or (2) any project specific or cumulative impacts from cars and light-duty truck trips generated by the project on global warming or the regional transportation network.” If the CEQA document is an EIR, it “shall not be required to reference, describe, or discuss a reduced residential density alternative to address the effects of car and light-duty truck trips generated by the project.”

    Other Developments. The movement to address global warming continues apace in other venues as well. Many actions have been taken to implement and reflect the Global Warming Solutions Act of 2006, commonly known as AB 32:

    • ARB Draft Scoping Plan. The Air Resources Board issued a draft Scoping Plan proposing ways California can reduce greenhouse gas emissions to 1990 levels by 2020, as required by AB 32. The draft Scoping Plan calls for “an ambitious but achievable reduction in California’s carbon footprint.” It proposes various regulatory and market-based measures, and concludes that these measures will enable California to meet the AB 32 requirement. The measures include “21st century land use planning and development practices,” which focus on principles similar to those reflected in SB 375, by “making the connection between transportation and land use.” Some agencies may factor information regarding whether a project implements the Scoping Plan recommendations into a CEQA analysis. (Available at http://www.arb.ca.gov/cc/scopingplan/document/draftscopingplan.htm)
    • OPR Technical Guidance. The Governor’s Office of Planning and Research issued a technical advisory on addressing climate change through CEQA. (Available at http://www.opr.ca.gov/ ) The technical advisory discusses recommended approaches to analyzing greenhouse gases, and identifies factors agencies may consider in establishing thresholds of significance. In addition, the advisory lists examples of greenhouse gas reduction measures, which many agencies use as a list of possible mitigation measures.
    • AEP and CAPCOA Guidance. Many EIR preparers continue to rely upon the paper issued by the Association Of Environmental Professionals in June 2007 for guidance on how to perform an analysis of greenhouse gases in a CEQA document. The AEP paper proposes alternative approaches to qualitative and quantitative analyses of greenhouse gas emissions in CEQA documents. However, the paper published by the California Air Pollution Control Officers Association in January 2008 is gaining favor in other jurisdictions. The CAPCOA paper proposes several numerical thresholds and alternate strategies for determining whether a project’s contribution toward global warming is cumulatively considerable. (The AEP paper is available at http://www.califaep.org/userdocuments/File/AEP_Global_Climate_Change_June_29_Final.pdf. The CAPCOA paper is available at http://www.capcoa.org).
    • Recent State Trial Court Opinions. Two trial courts recently issued rulings on greenhouse gas studies. In Environmental Council of Sacramento v Caltrans and Center For Biological Diversity v. City of Desert Hot Springs, the courts rejected arguments that a project’s potential to contribute towards global warming was too speculative to analyze. The agencies in those cases argued that knowledge about global warming is still in its infancy, and that because there are no accepted methodologies, analyzing global warming impacts at the project level is not possible. The courts rejected these arguments, finding that the agencies did not study the issue adequately before determining that any conclusion would be speculative. The court in Desert Hot Springs further ruled that recently enacted laws support the contention that CEQA requires an analysis of a project’s effect on global warming.
    • Recent Federal Appellate Court Opinion. The federal Ninth Circuit Court of Appeal also weighed in regarding NEPA requirements for greenhouse gas evaluations. Center for Biological Diversity v. National Highway Traffic Safety Administration involved a challenge to a rule setting fuel economy standards for light trucks. The NHTSA prepared an environmental assessment, which concluded that the new standards would not have an adverse effect on climate change because they would reduce carbon dioxide emissions compared to existing fuel economy standards. The court rejected the environmental assessment because it failed to recognize that the new standards “will not actually result in a decrease in carbon emissions, but potentially only a decrease in the rate of growth of carbon emissions.” The assessment did not include an analysis of the “incremental impact” these emissions would have on climate change in light of other actions such as other motor vehicle emission standards. The court ruled that NHTSA must examine the effect of the new standards on global climate change.