Article Legal Notes Timothy H. IronsElizabeth M. Del Cidattorney

SB 97: The “Other” Global Warming Act

Timothy H. Irons is a shareholder in Brownstein Hyatt Farber Schreck and a member of the National Resources, Water and Land Use groups; he can be reached at tirons@bhfs.com. Attorney Elizabeth M. Del Cid is an associate at Burke, Williams & Sorensen, LLP, serving in its Environmental Law and Sustainability and Public Law Practice Groups; she can be reached at edelcid@bwslaw.com.

The Global Warming Solutions Act of 2006 (AB 32)1 introduced new statewide goals for reducing greenhouse gas (GHG) emissions. The following year, Senator Robert Dutton’s lesser-known GHG bill SB 972 was passed. SB 97 does two things — it directs the Office of Planning and Research (OPR) to develop guidelines for reducing or eliminating GHG emissions and protects infrastructure projects funded by voter-approved bonds from legal attack based on noncompliance with AB 32. Although the AB 32 exemption provided by SB 97 expires Jan. 1, 2010, the guidelines prepared by OPR and adopted by the state Resources Agency may pose significant, long-lasting changes to the environmental review and approval of projects throughout California.

Background

OPR is the statewide land use agency charged with developing guidelines to implement the California Environmental Quality Act (CEQA). The guidelines include provisions for determining the significance of environmental impacts and reporting, monitoring and enforcing feasible mitigation measures.3 ”Significant environmental impacts” are substantial or potentially substantial adverse changes in the environment.4 ”Feasible mitigation measures” are efforts to reduce or eliminate significant impacts that can be successfully accomplished within a reasonable period of time, taking into account economic, environ mental, social and technological factors.5 OPR’s existing mandate includes reviewing the guidelines at least every two years and recommending changes or amendments to the state Resources Agency.6

In a break from the usual two-year review process, SB 97 requires OPR to compose CEQA guidelines specific to GHG emissions. Specifically, it requires OPR to prepare, develop and transmit to the Resources Agency by July 1, 2009, guidelines to reduce or eliminate GHG emissions and their effects.7 The Resources Agency will certify and adopt such guidelines by Jan. 1 , 2010.8 Thereafter, OPR will periodically update the guidelines to include new information or criteria from the California Air Resources Board (CARB), as specified by AB 32.9

How SB 97 Affects Public Agencies

Once the guidelines go into effect, public agencies will be required to follow them when approving projects as either a lead or responsible agency.10 This means lead and responsible agencies must consider GHG emissions in determining whether:

  • A project may have a significant effect on the environment; and
  • A project requires an environmental review document under CEQA (either an environmental impact report, a proposed negative declaration or a proposed mitigated negative declaration).11

OPR’s State Clearinghouse has already begun to track the project types that include GHG or climate change discussion in their environmental review documents. The project types include but are not limited to large housing developments, oil refinery expansions, habitat restoration, General Plan updates, transportation projects and energy/infrastructure projects.12

SB 97 affords certain projects a grace period13 during which GHG emission analyses will not be required, but the period ends Jan. 1, 2010 — the same deadline CARB has to adopt preliminary GHG emission reduction measures under AB 32.14 Specifically, SB 97 enables projects financed by Proposition 1B (the Highway Safety, Traffic Reduction, Air Quality, and Port Security Bond Act of 2006)15 and Prop. 1E (the Disaster Preparedness and Flood Prevention Bond Act of 2006)16 to move forward without analysis of the effects of GHG emissions.17 This exemption applies retroactively to Prop. 1B and 1E projects that failed to include GHG emission analyses in their initial environmental review documents.18

OPR has yet to articulate GHG emission reduction guidelines to the Resources Agency under SB 97, which means guideline adoption and certification are in the works. This opens a window of opportunity for local agencies — including cities — and other stakeholders to engage in the guideline development process and offer comments to OPR on rules that will likely affect significance determinations and mitigation measures pertinent to CEQA compliance.

Although OPR is in the preliminary stages of formulating guidelines, items that may receive a makeover include:

  • An updated Environmental Checklist Form19 addressing GHG emissions;
  • A new section on determining the significance of impacts of GHG emissions, similar to CEQA Guidelines section 15064.5;20
  • A mandatory finding of significance for GHG emissions under CEQA Guidelines section 15065;
  • An update on mitigation monitoring and reporting requirements for GHG emissions under CEQA Guidelines section 15097; and
  • An appendix, similar to the Energy Conservation Appendix,21 that identifies potential mitigation measures.

Opportunity for Local Input

Historically, the approach of OPR and the Resources Agency has been – and likely will continue to be – deferential and flexible, allowing each lead agency and responsible agency to determine specific thresholds of significance and develop mitigation measures appropriate for a given situation.22 However, continuation of the deferential approach is not guaranteed.

Local agencies and stakeholders may be wise to take this opportunity to describe levels of GHG emissions they deem less than significant and provide input on the feasibility of mitigation measures under consideration. OPR is looking for input and advice from state agencies, local governments, elected officials, stakeholder groups and the public. Contact OPR at ceqa.ghg@opr.ca.gov.

Footnotes:

[1] Health & Safety C. §§ 38500 et seq.

[2] Pub. Res. C. §§ 21083.05, 21097.

[3] Cynthia Bryant (Director of Governor’s Office of Planning and Research), “Climate Change and CEQA, Presentation to the California State Association of Counties, Creating a Better Tomorrow” (11/4/07), http://www.csac.counties.org/images/public/Advocacy/ag_natres/CEQA%20GHG%20%20Nov%202007.ppt, slide 3 (Climate Change & CEQA).

[4] Pub. Res. C. § 21068.

[5] Id. § 21061.1 [defining "feasible"].

[6] Id. § 21083(f).

[7] Id. § 21083.05(a).

[8] Id. § 21083.05(b).

[9] Id. § 21083.05(c).

[10] Id. §§ 21067 [defining "lead agency"], 21069 [defining "responsible agency"].

[11] Id. § 21080.

[12] Climate Change & CEQA, slide 7.

[13] Pub. Res. C. § 21097(d).

[14] Health & Safety C. § 38560.5(b).

[15] Gov. C. §§ 8879.20 et seq.

[16] Pub. Res. C. §§ 5096.800 et seq.

[17] Id. § 21097(a).

[18] Id. § 21097(c).

[19] 14 CCR Appendix G.

[20] Id. § 15064.5 [determining the significance of impacts to archaeological and historical resources].

[21] Id. Appendix F.

[22] See Id. § 15126.4(b).

About Legal Notes

This column is provided as general information and not as legal advice. The law is constantly evolving, and attorneys can and do disagree about what the law requires. Local agencies interested in determining how the law applies in a particular situation should consult their local agency attorneys.

This article appears in the July 2008 issue of Western City
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