There’s been a lot of talk about how recent and upcoming legislation in California will make local governments—and gubernatorial executive orders—accountable to new climate change mandates. New court cases and regulations concerning greenhouse gas (GHG) emissions and climate change adaptation will pose challenges and opportunities for local governments. These court rulings and new regulations will tighten up mandates for how local governments use GHG thresholds and address GHG emissions and how they will address climate adaptation and resiliency. But precisely how these requirements and mandates will be achieved remains to be seen.
The California Supreme Court issued two key rulings in 2015—and a third is pending in 2016—affecting how climate change must be addressed in California Environmental Quality Act (CEQA) evaluations.
Centers for Biological Diversity vs. California Department of Fish and Wildlife(CBD vs. CDFW, commonly referred to as “Newhall Ranch”)
  • The case: This case addressed a large mixed-use community in Santa Clarita in unincorporated Los Angeles County. CBD challenged the project Environmental Impact Report (EIR) on a range of grounds, including the use of a common significance threshold for GHG emissions based on a “percent below business as usual” metric.
  • The outcome: The Supreme Court ruled that using a statewide reduction target and a reduction below the business as usual metric was appropriate but found that the EIR did not provide substantial evidence explaining why a new development project should use the same reduction amount as the state overall.
  • What does it mean? The ruling means that local governments need to “up their game” when using GHG thresholds and must be able to explain why the use of a particular threshold is appropriate for the specific project under evaluation.
  • The case: CBIA challenged a recommended BAAQMD CEQA threshold that would require evaluating impacts caused by the placement of new receptors where they would be exposed to existing pollution sources. CBIA, building on a number of prior appellate case rulings, argued that CEQA should apply only to the impacts of a project on the environment and not vice-versa (so-called “reverse CEQA”).
  • The outcome: The Supreme Court essentially agreed with CBIA’s argument, ruling that CEQA does not apply to the impacts of the environment on a project. The Court provided exceptions to the general rule specified in the Public Resources Code regarding certain types of housing, school projects, and airport noise. The Court also noted that CEQA still applies to impacts of projects that worsen existing environmental hazards.
  • What does it mean? This ruling means that CEQA generally does not require the analysis of impacts of climate change on a project such as sea level rise unless the project would somehow exacerbate the degree or character of climate change effects locally (e.g. not through GHG emissions but physical changes at or adjacent to the project site). Beyond climate change, this ruling also means that CEQA evaluations will generally no longer require analysis of the impact of existing air quality or hazardous materials, flooding, earthquake fault zones, non-airport noise, or other existing environmental conditions on new project receptors or users. Local governments that intend to address such environmental issues will need to turn to non-CEQA policy tools such as their General Plan instead of CEQA.
  • The case: This case is currently pending at the Supreme Court. The case concerns a challenge to EIR for the Regional Transportation Plan/Sustainable Communities Strategy (RTP/SCS) prepared by SANDAG in compliance with Senate Bill (SB) 375. The plaintiffs argue that the EIR did not sufficiently analyze the impact of RTP/SCS on the 2050 GHG reduction goal in Executive Order S-03-05, which includes a goal of reducing 2050 GHG emissions to 80 percent below 1990 levels.
  • What could it mean? The ruling on this case could both influence the extent of required GHG analysis in CEQA and question the legal applicability of gubernatorial executive orders to the actions of local governments, which has broad implications beyond climate change.
The California legislature also took action on GHG emissions and adaptation in the 2015 session, and there is significant pending legislation under consideration for the 2016 session.
SB 350 (DeLeon/Leno, 2015)
  • The breakdown: SB 350, approved in 2015, will require the state’s electricity generation mix in 2030 to consist of at least 50 percent renewable energy. Previous law had required the state’s renewable mix to be 20 percent in 2010 and 33 percent in 2020. SB 350 also requires the state to improve energy efficiency in existing buildings by 50 percent by 2030.
  • The potential effects: This bill will change how California governments, residents, and businesses consume energy. While the renewable portfolio standard will affect energy utility operations, new efficiency requirements are likely to involve local government substantially, given the role of local cities and counties in approving new development. Exactly how the energy efficiency mandate will be achieved remains to be seen.
Adaptation Laws (SB 246Assembly Bill (AB) 1482SB 379)
  • The breakdown: These three laws introduce requirements to address climate change adaptation in a formal way similar to the mandates for GHG emissions. SB 246 creates an Integrated Climate Adaptation and Resiliency Program with the Governor’s Office of Planning & Research to coordinate regional and local efforts on climate change adaptation. AB 1482 gives more state-level authority on adaptation to the Natural Resources Agency and Strategic Growth Council concerning funding, information distribution, review of state agency actions, and updating the statewide adaptation plan. SB 379 formally links local climate change adaptation planning, hazard mitigation planning, and general plans and is the most important of these bills for local government. SB 379 requires the next versions of local hazard mitigation plans to include climate change adaptation starting in 2017. If no local hazard mitigation plan exists, the safety element of local general plans must be reviewed and updated to address climate adaptation and resiliency strategies applicable to that city or county by the end of 2021.
  • The potential effects: Taken together, these bills start to establish a foundation of making climate change adaptation a more widespread responsibility of regional and local agencies. Particularly, local governments need to evaluate how they will comply with SB 379y, as this law requires local climate hazard mitigation plans.
SB 32 (Pavley, 2015/2016)
  • The breakdown: SB 32 is pending and contains a legislative target for GHG reductions of 40 percent below 1990 levels by 2030 and a requirement that the state’s scoping plan updates for GHG reductions be subject to review by specific legislative committees.
  • The potential effects: This bill would remove any uncertainty about the mandate for post-2020 GHG reductions as a matter of state policy, regardless of executive orders.
Taken together, these judicial and legislative actions will serve to clarify some parts of CEQA compliance, while also creating additional requirements for local governments. Project proponents launching development projects in California will need to make that their compliance efforts meet the scrutiny of both state and local requirements coming from these new court and legislative actions.
Our contributing author, Rich Walter, is a principal consultant at ICF International. Rich has 23 years of experience in environmental planning, compliance strategy, permitting, and mitigation development and implementation. He has worked on numerous controversial and complex environmental planning and compliance projects. He is the leader of ICF’s California Municipal Climate Action Planning Practice.
(Source: https://www.linkedin.com/pulse/new-climate-change-regulatory-challenges-california-charles-smith?trk=hb_ntf_MEGAPHONE_ARTICLE_POST)