The California Natural Resources Agency (“CNRA”) has adopted amendments (“Amendments”) to the California Environmental Quality Act (“CEQA”) Guidelines, which will become effective on March 18, 2010. The Amendments implement a directive by the California Legislature to certify and adopt guidelines “for the mitigation of greenhouse gas emissions or the effects of greenhouse gas emissions.” See Public Resources Code section 21083.05. The Amendments add three sections to the “Guidelines for Implementation of the California Environmental Quality Act” (“Guidelines”) and amend eleven sections and two appendices to the Guidelines.
The Amendments amend section 15064, titled “Determining the Significance of the Environmental Effects Caused by a Project.” The Amendments add the following plans to the list of plans and programs that may be considered in a cumulative impacts analysis: “water quality control plan, air quality attainment or maintenance plan, integrated waste management plan, habitat conservation plan, natural community conservation plan, [and] plans or regulations for the reduction of greenhouse gas emissions.” Importantly, the Amendments now require the lead agency to “explain how implementing the particular requirements in a plan, regulation or program ensure that the project’s incremental contribution to the cumulative effect is not cumulatively considerable.” According to the Final Statement of Reasons for Regulatory Action (“Final Statement”) issued by CNRA, “[B]y requiring that lead agencies draw a link between the project and the specific provisions of a binding plan or regulation,” this addition to section 15064 will “ensure that the cumulative effects of the project are actually addressed by the plan or regulation in question.”
The Amendments add section 15064.4 to the Guidelines. Section 15064.4, which is titled “Determining the Significance of Impacts from Greenhouse Gas Emissions,” provides, “The determination of the significance of greenhouse gas emissions calls for a careful judgment by the lead agency consistent with the provisions in section 15604.” This new section requires a lead agency “to make a good-faith effort, based to the extent possible on scientific and factual data, to describe, calculate or estimate the amount of greenhouse gas emissions resulting from a project.” (Emphasis added.) In the context of a particular project, a lead agency will have discretion to determine whether to: (1) “Use a model or methodology to quantify greenhouse gas emissions resulting from a project, and which model or methodology to use;” and/or (2) “Rely on a qualitative analysis or performance based standards.” A lead agency must consider the following factors when it assesses the significance of impacts from greenhouse gases on the environment: (1) “The extent to which the project may increase or reduce greenhouse gas emissions as compared to the existing environmental setting;” (2) “Whether the project emissions exceed a threshold of significance that the lead agency determines applies to the project;” and (3) “The extent to which the project complies with regulations or requirements adopted to implement a statewide, regional, or local plan for the reduction or mitigation of greenhouse gas emissions.”
According to the Final Statement, this section “is designed to assist lead agencies in performing that required investigation” and “provides that lead agencies should quantify [greenhouse gas] emissions where quantification is possible and will assist in the determination of significance, or perform a qualitative analysis, or both as appropriate in the context of the particular project, in order to determine the amount, types and sources of [greenhouse gas] emissions resulting from the project.” The list of factors to be considered by public agencies when it determines the significance of a project’s greenhouse gas emissions is not exhaustive and, according to the Final Statement, “other factors can and should be considered as appropriate.” (Emphasis added.)
Section 15064.7, which addresses the thresholds of significance, has been amended to provide the following: “When adopting thresholds of significance, a lead agency may consider thresholds of significance previously adopted or recommended by other public agencies or recommended by experts, provided the decision of the lead agency to adopt such thresholds is supported by substantial evidence.” According to the Final Statement, this amendment “is reasonably necessary because many lead agencies perform general governmental functions, and may lack the specific expertise necessary to develop their own thresholds of significance for [greenhouse gas] emissions.” As a result, “agencies may rely on thresholds developed by other agencies with specialized expertise (such as an air quality management district) in conducting their CEQA analyses.”
Also amended is section 15065, which addresses mandatory findings of significance. Prior to the amendment, section 15065(b)(1) provided, “Where, prior to the commencement of preliminary review of an environmental document, a project proponent agrees to mitigation measures of project modifications that would avoid any significant . . . .” The amendment replaces the word “preliminary” with the word “public.” According to the Final Statement, “The purpose of this amendment is to make section 15065 consistent with section 21064.5 of the Public Resources Code.”
A minor change was also made to section 15086, which addresses consultation concerning a draft environmental impact report (“EIR”). The Amendments changes a reference to the “State Air Resources Board” to “California Air Resources Board.”
Section 15093, titled “Statement of Overriding Considerations” has been amended to provide that region-wide or statewide environmental benefits should be considered when a decision-making agency balances “the economic, legal, social, technological, or other benefits . . . of a proposed project against its unavoidable environmental risks when determining whether to approve the project.” Section 15093 also now provides, “If the specific economic, legal, social, technological, or other benefits, including region-wide or statewide environmental benefits, of a proposal project outweigh the unavoidable adverse environmental benefits, the adverse environmental effects may be considered ‘acceptable.’”
The Final Statement explains that “[i]n the context of [greenhouse gas] emissions, some projects may cause adverse environmental impacts but still provide an overall benefit of reducing [greenhouse gas] emissions on a statewide or regional level.” The amendment to section 15093 allows a lead agency to consider region-wide environmental benefits related to greenhouse gas emissions when making a statement of overriding considerations for a project.
Section 15125 provides that an EIR must discuss any inconsistencies between the project and general plans and regional plans. The amendment to section 15125(d) adds specific plans to those that must be discussed and also provides that regional plans that must be considered include “regional blueprint plans” and “plans for the reduction of greenhouse gas emissions.”
Section 15126.2 addresses the consideration and discussion of significant environmental impacts in an EIR. The Amendments add the following requirement to those set out in section 15126.2: “Similarly, the EIR should evaluate any potentially significant impacts of locating development in other areas susceptible to hazardous conditions (e.g., floodplains, coastlines, wildfire risk areas) as identified in authoritative hazard maps, risk assessments or inland use plans addressing such hazard areas.”
Section 15126.4 addresses mitigation measures. The Amendments add subsection (c) to section 15126.4 to address mitigation measures for greenhouse gas emissions. This new subsection provides that a lead agency must “consider feasible means, supported by substantial evidence and subject to monitoring or reporting, of mitigating the significant effects of greenhouse gas emissions.” Measures to mitigate may include, but are not limited to: (1) “Measures in an existing plan or mitigation program for the reduction of emissions that are required as part of the lead agency’s decision;” (2) “Reductions in emissions resulting from a project through implementation of project features, project design, or other measures, such as those described in Appendix F;” (3) “Off-site measures, including offsets that are not otherwise required, to mitigate a project’s emissions;” (4) “Measures that sequester greenhouse gases;” and (5) “In the case of the adoption of a plan, such as a general plan, long range development plan, or plans for the reduction of greenhouse gas emissions, mitigation may include the identification of specific measures that may be implemented on a project-by-project basis.” In addition, mitigation may “include the incorporation of specific measures or policies found in an adopted ordinance or regulation that reduces the cumulative effect of emissions.”
Section 15130 addresses the discussion of cumulative impacts in an EIR. Subsection 15130(b) has been amended to require an adequate discussion of significant cumulative impacts. An adequate discussion must now contain either a “list of past, present, and probable future projects producing related or cumulative impacts,” or, “[a] summary of projections contained in an adopted local, regional or statewide plan, or related planning document, that describes or evaluates conditions contributing to the cumulative effect.” These plans “may include: a general plan, regional transportation plan, or plans for the reduction of greenhouse gas emissions.” Also, a summary of projections may “be contained in an adopted or certified prior environmental document for such a plan.” The “projections may be supplemented with additional information such as a regional modeling program.” The documents must be made available to the public. In addition, section 15130 is amended to provide that the following documents may be used in a cumulative impact analysis: “documents, including, but not limited to, general plans, specific plans, regional transportation plans, plans for the reduction of greenhouse gas emissions, and local coastal plans.”
Section 15150 is amended to provided that an EIR or negative declaration may incorporate by reference “[a] description of the effects of greenhouse gas emissions on the environment.”
Section 15183 adds the following to the examples of uniformly applied development policies or standards: “Requirements for reducing greenhouse gas emissions, as set forth in adopted land use plans, policies, or regulations.”
The Amendments add to the Guidelines section 15183.5 to address tiering and streamlining the analysis of greenhouse gas emissions. Section 15183.5 provides that “[l]ead agencies may analyze and mitigate the significant effects of greenhouse gas emissions at a programmatic level, such as in a general plan, a long range development plan, or a separate plan to reduce greenhouse gas emissions.” It further provides, “Later project-specific environmental documents may tier from and/or incorporate by reference that existing programmatic review.” The Amendments provide, “Project-specific environmental documents may rely on an EIR containing a programmatic analysis of greenhouse gas emissions as provided in section 15152 (tiering), 15167 (staged EIRs) 15168 (program EIRs), 15175-15179.5 (Master EIRs), 15182 (EIRs Prepared for Specific Plans), and 15183 (EIRs Prepared for General Plans, Community Plans, or Zoning).”
Also, “[p]ublic agencies may choose to analyze and mitigate significant greenhouse gas emissions in a plan for the reduction of greenhouse gas emissions or similar document.” This new section provides that a “lead agency may determine that a project’s incremental contribution to a cumulative effect is not cumulatively considerable if the project complies with the requirements in a previously adopted plan or mitigation program under specified circumstances.”
A greenhouse gas emissions reduction plan should: (1) “Quantify greenhouse gas emissions, both existing and projected over a specified time period, resulting from activities within a defined geographic area;” (2) “Establish a level, based on substantial evidence, below which the contribution to greenhouse gas emissions from activities covered by the plan would not be cumulatively considerable;” (3) “Identify and analyze the greenhouse gas emissions resulting from specific actions or categories of actions anticipated within the geographic area;” (4) “Specify measures or a group of measures, including performance standards, that substantial evidence demonstrates, if implemented on a project-by-project basis, would collectively achieve the specified emissions level;” (5) “Establish a mechanism to monitor the plan’s progress toward achieving the level and to require amendment if the plan is not achieving specified levels;” and (6) “Be adopted in a public process following environmental review.”
Once adopted, a plan for the reduction of greenhouse gas emissions “may be used in the cumulative impacts analysis of later projects.” This new section provides, “An environmental document that relies on a greenhouse gas reduction plan for a cumulative impacts analysis must identify those requirements specified in the plan that apply to the project, and, if those requirements are not otherwise binding and enforceable, incorporate those requirements as mitigation measures applicable to the project.” “If there is substantial evidence that the effects of a particular project may be cumulatively considerable notwithstanding the project’s compliance with the specified requirements in the plan for the reduction of greenhouse gas emissions, an EIR must be prepared for the project”.
Environmental documents for certain transit priority projects and residential and mixed use projects “that are consistent with the general use designation, density, building intensity, and applicable policies specified for the project area in an applicable sustainable communities strategy or alternative planning strategy need not analyze global warming impacts resulting from cars and light duty trucks.” A lead agency is responsible for considering “whether such projects may result in greenhouse gas emissions resulting from other sources, however, consistent with these Guidelines.”
The Amendments also adds section 15364.5 to the Guidelines to define greenhouse gas or gases as including, but not limited to, “carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride.”
Changes were also made by the Amendments to Appendix F to the Guidelines. Appendix F now provides that “[p]otentially significant energy implications of a project shall be considered in an EIR to the extent relevant and applicable to the project.” (Emphasis added.) One section of Appendix F provides that a project description may include certain items. The amendment adds that where an item that is listed is applicable or relevant to a project, it should be considered in the EIR.
Appendix G provides an environmental checklist form. The Amendments add to the form, among other things, information about greenhouse gas emissions.
Questions
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