How Calif. land-use planning became a weapon against warming
Posted on December 5th, 2007By Colin Sullivan
Greenwire: SAN FRANCISCO — Land-use planners in California no longer see climate change as somebody else’s problem.
The proof is in the numbers. This year, 131 development projects requesting state approval under the California Environmental Quality Act (CEQA) mentioned climate change as a significant factor in their filings with local agencies, according to Gov. Arnold Schwarzenegger’s (R) office. In 2006, there were only two.
The list for 2007 spans major and minor projects — from Orange County’s long-term transportation blueprint and the San Diego International Airport master plan to a Bakersfield recreation complex and a sprawling Huntington Beach senior center — and shows developers are no longer complacent about greenhouse gas emissions.
Why the dramatic shift? The answer is complicated. It starts with a lawsuit filed last year against the city of Banning and winds through the attorney general’s office, the governor’s mansion and finally the California Legislature.
At its core is how some aggressive environmentalists and the attorney general found a new role for CEQA.
Since its inception in 1970, CEQA — analagous to the National Environmental Policy Act — had never been used to battle greenhouse gas emissions in state court and was viewed by many in the legal community as toothless on the issue. But with the passage of California’s landmark climate law in (A.B. 32) in September 2006, one environmental group decided to approach the old law through a new lens.
The Center for Biological Diversity launched its legal assault in November 2006 with a lawsuit against Banning (population 30,000) that attacked the city for its failure to address how the proposed construction of more than 1,400 new homes would lead to additional greenhouse gas emissions. The group cited CEQA environmental guidelines in its brief and demanded the town revisit the plan and consider ways to avoid new emissions.
“We asked that they take global warming into account,” said Matt Vespa, a staff attorney at the center. “They ignored us and refused to do it.”
The Banning case led to further lawsuits as environmental groups realized they could use CEQA to make city planners take a second look at smart-growth measures and vehicle miles traveled.
Here’s why: CEQA says planners must consider “significant environmental impacts” and take steps to address them, and A.B. 32 codified greenhouse gases as having a significant environmental impact on California, Vespa said. Thus, CEQA got the teeth environmentalists wanted to pursue global warming at the local level.
AG’s ’strong message’
The link between CEQA and the climate law was dismissed by many interest groups and some Republicans, but it caught the attention of Attorney General Jerry Brown (D), a former governor who was more than willing to take on the municipal entities behind new projects.
Brown jumped into some major lawsuits, and this summer forced San Bernardino County to revisit its long-term expansion in an attempt to make it dovetail with A.B. 32’s goal of lowering statewide emissions to 1990 levels by 2020. He subsequently cut a similar settlement with ConocoPhillips related to a refinery expansion in Contra Costa County (E&ENews PM, Sept. 11).
“The attorney general has sent a very, very strong message,” said Malcolm Weiss, an attorney with Jeffer, Mangels, Butler & Marmaro in Los Angeles.
Brown’s campaign also sparked a political fire in Sacramento, where many Republicans were livid about the new interpretation of CEQA. The political uproar led to the adoption of a budget trailer bill (S.B. 97) over the summer that directs the governor to promulgate new greenhouse gas guidelines under CEQA and grant certain bond-funded projects — bridges and levees, for example — a safe harbor from lawsuits until the guidelines go into effect on Jan. 1, 2010.
In other words, the Legislature said Brown and the environmental groups were correct in pursuing climate mitigation under CEQA. The governor agreed and cut a deal to protect emergency infrastructure. His office now is engaged in setting up guidelines to better define “significant” effects and mitigation alternatives.
“S.B. 97 removes any doubt that GHGs have to be evaluated under CEQA,” said Cliff Rechtschaffen, a special assistant to the attorney general on climate. “In our view, there was never any question … but the bill clearly reflects the Legislature’s belief that GHGs have to be evaluated.”
‘Big unknown’
So cities, towns and counties have effectively been forced to analyze, or begin to analyze, the effect of a new project on climate change. But where that leaves the pursuit of actual reductions in emissions is an open question.
Michael Zischke, a lead attorney for San Bernardino County in its fight against the attorney general, said the two settlements with Brown and S.B. 97 have failed to specify how to determine the “significance” threshold of an individual project. He asks: Is the construction of 100 homes a significant effect? How about 1,000?
These kinds of questions, he argued, open the door for a legal free-for-all in which local agencies will be able to apply a variety of approaches and then potentially see their plans for mitigating GHGs challenged in court.
“Until there’s a threshold of significance that’s developed by someone, we’re going to find that it’s speculative if any project makes a significant contribution to greenhouse gas emissions,” said Zischke, a land-use expert at San Francisco-based Cox, Castle and Nicholson.
Zischke further argued that not enough is known about the intersection of land use and warming to plug the numbers into current climate models. Climate change, he said, is a global phenomenon that makes it difficult to establish a local baseline. He cited the example of new suburban housing complexes and how modelers try to assess the resulting increase in vehicle miles traveled.
“The people moving into those houses are already driving somewhere,” he said. “I haven’t seen a good demographic model that shows you how to evaluate change.”
John McKinsey, an attorney at Stoel Rives in Sacramento, agrees that the legal question in California has shifted from whether local entities have to consider climate change to how much analysis is enough to satisfy the attorney general. But he also thinks it is a question that will be worked out in the courts prior to the implementation of the governor’s standards on Jan. 1, 2010, or before A.B. 32’s regulations go into effect on Jan. 1, 2012.
“The big unknown is what degree of scrutiny is good enough and what level of effect is a significant adverse environmental impact that needs to be mitigated,” McKinsey said. “That will take years probably to figure out,” he added, predicting challenges in superior court that could find their way to the state Supreme Court.
“The case history,” he added, “will tell cities and counties what the number is.”
Sorting it out
Until then, local agencies appear to be on their own in determining how far and fast to eliminate future emissions.
Suzanne Reed, the California program manager at the Center for Clean Air Policy, sees this as a positive and points out that prominent voluntary efforts to adopt smart-growth measures and other alternatives — in Sacramento and San Diego counties and the Bay area, to name a few — will effectively define “common-sense” thresholds.
“These jurisdictions are being motivated for other reasons,” she said. “They have congestion management problems, air quality problems. Some of these mitigation measures just make sense to reduce vehicle miles traveled, in addition to open space preservation for farm land.”
And don’t discount the growing media and public attention on climate change and the California electorate’s desire to do something about it.
“I think the legal challenges have had an effect, but I also think [the increase in filings] does mirror the awareness of climate change generally,” said Vespa of the Center for Biological Diversity.
For his part, Rechtschaffen disagreed that most climate models are speculative, but he admitted the attorney general is hoping for guidelines from California’s pollution control offices. Until the state or court system works out the guidelines, Brown and his staff are prepared to pore over project applications and will reserve the right to object to an individual CEQA filing if an analysis or mitigation plan is found lacking.
When asked if lawsuits would be removed as tools following the recent settlements and passage of S.B. 97, as was the governor’s intention in moving the bill, Rechtschaffen’s response was straightforward: “No. Absolutely not.”
Until the standards are set, the consensus among many experts is the mitigation measures advanced by Brown’s office first in the San Bernardino case and then in the ConocoPhillips settlement will serve as a template for counties and cities looking to structure a way to police new emissions. These include high-density developments, electric vehicle charging facilities, limits on parking, energy-efficient design, methane recovery, use of solar panels and carbon credit purchases.
As for whether the claim to CEQA jurisdiction over greenhouse gases would have stood up in court, Zischke insisted his side would have been victorious on the grounds that linking new growth to global climate change is speculative.
Rechtschaffen dismissed that claim.
“So why did they settle?” Rechtschaffen said. “We respectfully disagree.”
Click here to view the Office of Planning and Research document on projects that address or discuss climate change.
