GLOBAL WARMING AND RESIDENTIAL REAL ESTATE DEVELOPMENT: THE CALIFORNIA EXPERIENCE

Size: px

Start display at page:

Download "GLOBAL WARMING AND RESIDENTIAL REAL ESTATE DEVELOPMENT: THE CALIFORNIA EXPERIENCE"

Paul Hicks
6 years ago
Views:

1 GLOBAL WARMING AND RESIDENTIAL REAL ESTATE DEVELOPMENT: THE CALIFORNIA EXPERIENCE Kenneth B. Bley Cox, Castle & Nicholson LLP 2049 century Park East, 28 th Floor Los Angeles, CA February 13, 2008

2 Effects of Global Warming Rise in sea level Rise in temperature Rise in regulation

3 One Meter Sea Level Rise California

4 One Meter Rise in Sea Level Florida

5 Climate Change Effects in California In California, Average temperature has risen 1.7º F over the last 100 years Projected to rise 2 to 10 º more by 2100 Sea level has risen 7 inches in the last 100 years Projected to rise 4 to 33 inches more by 2100 Snowmelt has advanced 2 days per decade since 1955 Sierra snowpack will diminish by 70 to 90% by 2100 Fraction of runoff has decreased 12% between April and July over the last 100 years Wildfire frequency has increased fourfold since 1968

6 Rise in regulation Not concerned with AB 32 which mandates a reduction in greenhouse gases to 1990 levels by 2020 and 20 % 9 of 1990 levels by 2050 No regulations implementing AB 32 have been issued yet Cities and counties are beginning to mandate green construction

7 Immediate Effects of Global Warming Concerns Every discretionary approval in California requires environmental review under CEQA, the California Environmental Quality Act Virtually every necessary approval is discretionary in California General plan amendments, rezonings, subdivision maps, conditional use permits, variances and (sometimes) building permits

8 CEQA Varying levels of environmental review Mitigated negative declaration (MND) Environmental impact report (EIR) An EIR is required whenever a fair argument exists that the project will produce significant unmitigated impacts Includes both project related impacts and cumulative impacts

9 EIR - I Meant to inform the decision makers and the public of environmental impacts of a project A claim that an EIR is inadequate is the preferred method of attacking a project s approval An inadequate EIR requires setting aside the project s approvals

10 EIR - II EIRs are expensive to produce in time and money 9 to 12 months is the least time that can be expected It s not uncommon for an EIR to cost $1,000,000

11 EIR - III An EIR has to set out the extent of the impact and feasible mitigation measures for both the project and the project s contribution to cumulative impacts

12 EIRs and Global Warming - I How are the project s impacts to be measured? If homes aren t built here, they ll be built somewhere else Use of electricity accounts for about 35% of the greenhouse gases Will automobile trips will be diverted from elsewhere or will they all be new? Automobiles account for about 65% of the greenhouse gases

13 EIRs and Global Warming - II What constitutes a significant impact? The EIR for a Wal-Mart expansion states that it will produce 680 tons of greenhouse gases a year, % of California s annual output. What constitutes feasible mitigation? Must the applicant purchase carbon offsets to come to a zero additional contribution? How effective are these offset programs and what do they cost?

14 Who s Likely to Sue Opponents of every stripe have started to argue the inadequacy of environmental review based on global warming analysis Center for Biological Diversity California s Attorney general A good example of his position can be found at Coyote%20Valley%20Comments.pdf

15 What s It All Mean? The problem is that there are no regulations and no appellate court opinions telling developers what an EIR must do to deal with global warming Recently approved project which are in litigation have no way of knowing if their EIRs are adequate EIRs in preparation have no way of know what must be included It s going to be a few years before the answers are in It s unlikely that California will be the only state to have to deal with the situation

State NEPAs and GHG Impacts

State NEPAs and GHG Impacts Most states have adopted their own versions of NEPA that have used to evaluate potential environmental impacts such as air and water pollution, congestion, and noise. In the