Performing CEQA Climate Change Analysis Beyond 2020

Transcription

1 Performing CEQA Climate Change Analysis Beyond 2020 Ryan Waterman, Stoel Rives LLP California Climate Action Planning Conference February 1, 2013 San Luis Obispo, CA 1

2 Determining the significance of greenhouse gas emissions under CEQA What laws apply? State Regional Local What CEQA significance thresholds are used to analyze greenhouse gas (GHG) emissions? Does CEQA require a project to uses a particular threshold of significance for GHG emissions? 2

3 Beyond 2020 What GHG significance thresholds apply beyond 2020? 3

4 Beyond 2035 What GHG significance thresholds apply beyond 2035? What CEQA projects may be contemplating this question? General Plans Regional Transportation Plans (RTPs) 4

5 SANDAG s RTP 2010 to 2050 First Regional Transportation Plan / Sustainable Community Strategy (RTP /SCS) developed pursuant to SB 375 in the state Analyzed period from 2010 to 2050 voluntarily looked 15 years beyond 2035 Air Resources Board (ARB) certified the SANDAG RTP / SCS as meeting or exceeding ARB s SB 375 targets for the San Diego region RTP / SCS adopted, EIR certified October

6 Cleveland Nat l Forest Foundation v. SANDAG, San Diego Superior Court (Dec. 3, 2012) CEQA challenge filed against SANDAG s RTP / SCS EIR by: Cleveland National Forest Foundation Center for Biological Diversity CREED-21 Affordable Housing Coalition Sierra Club California Attorney General Kamala Harris 6

7 Trial court decision overturns SANDAG RTP / SCS EIR SANDAG failed to comply with CEQA because: Did not consider Gov. Schwarzenegger s Executive Order S-3-05 (2005) to be a plan under CEQA Guidelines (b)(3) Failed to analyze RTP / SCS s failure to achieve S s target a 80% reduction in GHG emissions from 1990 levels by 2050 as a significant impact Failed to address rise in GHG emissions from 2020 to

8 Trial court decision overturns SANDAG RTP / SCS EIR First court decision to hold that a failure to use Executive Order S-3-05 s 2050 target as a significance threshold was CEQA error Question: should Executive Order S-3-05 apply as a CEQA significance threshold past 2020? 8

9 Executive Order S-3-05 Issued in 2005 by Gov. Schwarzenegger; not revoked by Gov. Brown GHG reduction targets: 2000 levels by 2010 (adopted by AB 32) 1990 levels by 2020 (adopted by AB 32) 80% below 1990 levels by 2050 Ordering executive branch agency coordination on climate change under CalEPA 9

10 Is Executive Order S-3-05 s 2050 target part of a plan? CEQA Guidelines (b)(3) directs a lead agency to assess significance of GHG emissions by considering whether the project complies with a statewide, regional, or local plan to reduce or mitigate GHG emissions Trial court found AB 32 Scoping Plan was such a plan, and that the Scoping Plan had adopted S-3-05 s 2050 targets Problems with trial court s conclusion... 10

11 Executive Orders have limits Governor may only issue Executive Orders: based on Executive Power, or based on statutes where Legislature allows Governor to exercise executive discretion Executive Order S-3-05 cites executive power and to general statutory authority Executive power does not extend to economy-wide GHG emissions reductions, and no statutory authority to set 2050 targets 11

12 Lead agency discretion to select GHG threshold of significance Recent appellate case found CEQA Guidelines allows lead agencies to decide what threshold of significance it will apply to project, and does not cite S CREED v. City of Chula Vista, 197 Cal.App.4th 327, 336 (2011). 12

13 Other MPOs have not used S-3-05 s 2050 target Sacramento Area Council of Governments Metropolitan Transportation Plan EIR (April 2012) Southern California Association of Governments RTP EIR (April 2012) 13

14 What would it take to get to 2050? California Council on Science and Technology, California s Energy Future The View to 2050 (2011) Can achieve GHG emissions reductions 60% below 1990 levels by 2050 based on technology either in demonstration, or already in use Cannot achieve GHG emissions reductions 80% below 1990 levels by 2050 without technological innovations not yet available or in demonstration 14

15 What thresholds apply beyond 2020? My opinion: trial court will be reversed Lead agency has discretion to select GHG significance thresholds including Executive Order S-3-05 per CEQA Guidelines Local and regional plans may fill gap beyond 2020 to some degree To keep California on 2050 target, however, legislative action required in Sacramento 15

16 Ryan Waterman The information contained in this presentation does not constitute legal advice. 16