Douglas P. CarstensChatten-Brown & Carstens LLP, Hermosa Beach

SIERRA WATER WORKGROUP SUMMITJUNE 11-13, 2013

LEGAL ASPECTS OF CLIMATE CHANGE

&USING CEQA TO SUPPORT

BETTER PROJECTS

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CEQA requires a close look at alternatives and mitigation that can reduce greenhouse gas pollution and the risk of climate change.

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Greenhouse

Gas Analysis in

CEQA Guidelines

By enacting SB 97 in 2007, California’s lawmakers expressly recognized the need to analyze greenhouse gas emissions as a part of the CEQA process. Amendments to the CEQA Guidelines were adopted that clarified several points:

* Lead agencies must analyze the greenhouse gas emissions of proposed projects, and must reach a conclusion regarding the significance of those emissions. (See CEQA Guidelines § 15064.4.)

* When a project’s greenhouse gas emissions may be significant, lead agencies must consider a range of potential mitigation measures to reduce those emissions. (See CEQA Guidelines § 15126.4(c).)

* Lead agencies must analyze potentially significant impacts associated with placing projects in hazardous locations, including locations potentially affected by climate change. (See CEQA Guidelines § 15126.2(a).) (?)

* Lead agencies may significantly streamline the analysis of greenhouse gases on a project level by using a programmatic greenhouse gas emissions reduction plan meeting certain criteria. (See CEQA Guidelines § 15183.5(b).)

* CEQA mandates analysis of a proposed project’s potential energy use (including transportation-related energy), sources of energy supply, and ways to reduce energy demand, including through the use of efficient transportation alternatives. (See CEQA Guidelines, Appendix F.)

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Greenhouse

Gas Analysis

*Chevron applied for the necessary permits to construct a project that would replace manufacturing facilities at its refinery.

*  At first, the EIR refused to even acknowledge the environmental significance of greenhouse gas emissions and the effect of those emissions on global warming.

*After numerous objections, the EIR acknowledged "that the Proposed Project's estimated new emissions of 898,000 metric tons per year of GHGs [greenhouse gases] prior to mitigation would most likely be a significant effect on the environment."

Communities for a Better Environment

v.

City of Richmond (2010)

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*However, the EIR provided only a perfunctory list of possible measures to mitigate the Project's significant contribution to greenhouse gas emissions and deferred identification of these measures until after the CEQA process.

*  Since the EIR merely proposed a generalized goal of no net increase in greenhouse gas emissions and then set out a handful of cursorily described mitigation measures for future consideration that might serve to mitigate the 898,000 tons of emissions resulting from the project, the court found the mitigation plan for greenhouse gases to be deficient.

* The court stated, "the novelty of greenhouse gas mitigation measures is one of the most important reasons that mitigation measures timely be set forth, that environmental information be complete and relevant, and that environmental decisions be made in an accountable arena.”

Communities for a Better Environment v. City of Richmond cont’d

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Some recent case law has delivered setbacks to climate adaptation by restricting

the ability of public agencies to consider future conditions related to climate change

such as sea level rise and flooding.

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Sea Level Rise

*Project was a mixed-use real estate development in the Playa Vista area of Los Angeles.

*CEQA states, “The purpose of an environmental impact report is to identify the significant effects on the environment of a project....”

*Environmental groups claimed the EIR failed to address the impacts of sea level rise resulting from global climate change.

Ballona Wetlands Land Trust

v.

City of Los Angeles

(2011)

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Ballona Wetlands Land Trust v. City of Los Angeles cont’d

*The court said the purpose of an EIR is to identify the significant effects of a project on the environment, not the significant effects of the environment on the project.

*The Court explained, “identifying the effects on the project and its users of locating the project in particular environmental setting is neither consistent with CEQA’s legislative purpose nor required by the CEQA statutes.”

*The Court concluded that EIR’s are not required to discuss the impact of sea level rise on the project.

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Water Supply

*This case involved a challenge to the County of Madera’s approval of a mixed-use development project.

*When a project exceeds a water demand threshold, CEQA requires compliance with certain provisions of the Water Code.

*Water Code section 10910 requires an agency considering a project to obtain a written assessment of water supply and demand.

*This assessment must be included in the EIR.

Madera Oversight Coalition, Inc. v.

County of Madera

(2011)

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Madera Oversight Coalition, Inc. v. County of Madera

cont’d

*An EIR for a land use project must address the impacts of likely future water sources, and the EIR's discussion must include a reasoned analysis of the circumstances affecting the likelihood of the water's availability.

*Under the 2007 California Supreme Court case Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, where it is impossible to confidently determine that anticipated future water sources will be available, CEQA requires some discussion of possible replacement sources or alternatives, and of the environmental consequences of those contingencies.

*The Madera Oversight Coalition court concluded that the nondisclosure of information concerning uncertainties surrounding the project's source of water resulted in the EIR’s discussion of the water supply being inadequate.

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Water Supply and

Wildfire Safety

*The City of Santee certified an environmental impact report for a residential development project, which included a water supply assessment.

*The project was located in a declared high fire hazard zone and the project site has burned many times in the past and it is expected to burn again in the future.

Preserve Wild Santee

v.

City of Santee

(2012)

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Preserve Wild Santee v. City of Santee cont’d

The Court concluded the EIR’s analysis of water supply was inadequate because of 1) the large discrepancy between the EIR's estimation of the project's water demands and the assessment's estimation of the project's water demands; 2) the EIR failed to adequately analyze this discrepancy; and 3) the EIR did not discuss the uncertainty as to the project’s stated receipt of water.

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Preserve Wild Santee v. City of Santee cont’d

*The EIR also concluded the project's fire safety impacts were less than significant because the developer prepared a fire protection plan, which included building structures with fire resistant materials, creating landscaping zones around structures, and managing the amount of potential fuel in open space areas with prescribed burns or goat grazing.

*However, when the City approved the project, it did not adopt the open space fuel management portion of the fire plan, and thus the court concluded there was insufficient evidence to support the EIR's conclusion the project did not have significant fire safety impacts.