Groundbreaking greenhouse gas case in California
Amanda Monchamp and Melanie Sengupta
Holland & Knight LLP
October 26 2011
Supreme Court Denies Review and Depublication of Case Establishing Significance Thresholds for Greenhouse Gas Emissions Under CEQA
On October 19, 2011, the California Supreme Court denied the petition for review and requests for depublication of the Court of Appeal, Fourth District’s decision in Citizens for Responsible Equitable Environmental Development v. City of Chula Vista (2011) 197 Cal.App.4th 327 (CREED).
CREED captured great attention because of the only four published cases that address climate change, it is the first one to address the pivotal issue of a lead agency’s analysis of significance thresholds for greenhouse gas emissions under the California Environmental Quality Act (CEQA). CREED, along with several notable environmental advocacy groups and the Attorney General of the State of California, sought review as well as depublication to overturn the Court of Appeal’s sanctioning of a lead agency’s use of the California Global Warming Solutions Act of 2006 (AB 32) as the significance threshold to assess greenhouse gas emissions and climate change impacts under CEQA. The critical take-away of the CREED decision is that the lead agency has the discretion to set a significance threshold, and it is proper to use AB 32 and the “business as usual” methodology for assessing the significance of impacts from greenhouse gas emissions.
City's "Business-As-Usual" Threshold OK For Evaluating Greenhouse Gas Emissions Under CEQA
Jeffrey W. Forrest
Ashley T. Hirano
Sheppard, Mullin, Richter & Hampton LLP - San Diego Office
July 20, 2011
Citizens for Responsible Equitable Environmental Development ("CREED") v. City of Chula Vista, Docket No. D05779
In this clean-tech era, Citizens for Responsible Equitable Environmental Development ("CREED") v. City of Chula Vista marks only the third time that a court has published a case addressing greenhouse gases in California. In CREED, the City of Chula Vista certified a mitigated negative declaration ("MND") and approved development permits for a project that would demolish an existing Target store, a smog check facility, and a small market, and construct in its place a larger Target store. CREED filed suit, claiming that CEQA required the City to certify a full environmental impact report because the project would have a significant environmental impact on hazardous materials, air quality, particulate matter and ozone, and greenhouse gas emissions. While the court held that an EIR was likely required for other reasons, the court also held that, to demonstrate the project’s consistency with the GHG emissions reduction goals established by California's "Global Warming Solutions Act" (AB 32), the City had properly relied upon evidence the project’s emissions were below the GHG threshold of significance. The City established this threshold of significance using what has become known as the "Business-As-Usual" ("BAU") method. The court also held that the City properly relied on the thresholds of significance in the South Coast Air Quality Management District's CEQA Air Quality Handbook to conclude that the project's air quality impacts (particulate matter and ozone) were not cumulatively considerable even though the San Diego air basin is in non-attainment for particulate matter pollution.
...Finally, even though the percentage reduction from BAU necessary to meet AB 32's emissions reduction target has varied from time to time, agency to agency, and report to report, this court's decision indicates that when a public agency chooses to rely on a particular source's BAU percentage from a particular expert or agency report, it is important for the lead agency to require the project to meet at least that specific percentage if the lead agency's purpose is to demonstrate there is evidence the project is consistent with AB 32's reduction targets. To require less breaks the logical chain in the threshold and normally would require both a finding that further mitigation was infeasible and a statement of overriding considerations. Here, the permittee and the City were fortunate that the air quality report demonstrated that the project would achieve and exceed the report's stated 25 percent BAU standard.