NORTH BAY BUSINESS JOURNAL EVENT

2008 Going Green Conference: Building, Technology & Practices

Thursday, October 9, 2008, 7:30-11:45 a.m., Doubletree Hotel, Rohnert Park

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Climate change, CEQA may lead to more project lawsuits

NORTH BAY – There could be turbulent years ahead as the land-use legal environment connected to the state’s battle against climate change heats up and real estate law experts and local government planning officials struggle to analyze and mitigate for project-related greenhouse gases. It’s only been a year since the governor signed Senate Bill 97, adding climate change attributed to such gases to the list of environmental impacts government agencies will have to consider in approving projects in accordance with the California Environmental Quality Act.

However, it will be another year before the governor’s Office of Planning and Research is scheduled to release draft guidelines for inclusion of such impact analysis and potential mitigation measures in CEQA documents, such as environmental impact reports and mitigated negative declarations. The guidelines would be adopted at the dawn of 2010.

“Until state standards come out, you’re still shooting in the dark,” said Sheppard Mullin Richter & Hampton land-use attorney Judy Davidoff, who is advising several North Bay project owners on greenhouse gas language in environmental impact documents.

Yet since its enactment three decades ago, CEQA has been defined as much by litigation as by regulation, so solutions to major CEQA conundrums on climate change are still forthcoming, according to Mike Moore, Petaluma community development director.

First, project-specific “thresholds of significance” for greenhouse gas emissions largely aren’t defined, and measures for mitigating the emissions are still being developed. The Office of Planning and Research allows local jurisdictions to determine their own thresholds for deciding whether a project will create a significant impact and need an environmental impact report to identify project alternatives. If mitigation measures would reduce the impact to a less-than-significant level, environmental impacts would be disclosed in a CEQA document called a mitigated negative declaration.

Second, CEQA is designed to keep the current environmental condition from getting worse, not remediate to an earlier condition. The governor issued an executive order in 2005 for emissions of greenhouse gases to be returned to 1990 levels by 2020 and cut by 80 percent by 2050. Sonoma County governments went further in 2005 by pledging to cut such emissions by 25 percent below 1990 levels by 2015.

Third, CEQA covers new construction, and that overlooks large sources of existing emissions from older, less-efficient buildings. “Even if the OPR stays on schedule, it could be several more years before any of this is any clearer,” Mr. Moore said.

This definition-by-litigation history has attorneys for project owners worried about increased exposure to CEQA lawsuits by project opponents.

Litigation over water use led to court rulings that require project proponents to obtain will-serve letters from suppliers before construction, and legal action over habitat for protected species led to requirements for habitat mitigation, noted Steve Greenwood-Meinert of Gaw Van Male in Napa.

“Climate change is clearly going to be the next thing as a significant wedge issue under CEQA,” Mr. Greenwood-Meinert said.

Increased traffic already is a common cause of action in CEQA lawsuits, but now the very creation of automobile traffic could attract lawsuits over emissions of carbon dioxide and other greenhouse gases. Diesel-powered construction equipment used in the project as well as operational use of water and energy can be sources of emissions.

“It creates problems for projects on the edge of a city that for every other reason might be completely compatible with the General Plan and zoning but are not close to other services and might be put in jeopardy,” Mr. Moore said.

Acknowledging the lack of thresholds of significance and the difficulty in establishing them for an impact on the atmosphere, the Office of Planning and Research last month released a technical advisory to help with inclusion of greenhouse gas analysis and mitigation in CEQA documents.

Office Director Cynthia Bryant has been advising public agencies to analyze greenhouse gas emissions in “programmic” or large-scale documents, such as General Plans, and allow proponents of individual projects to reference those thresholds, known as “tiering.” That information could be used in one of the commonly used modeling software to make a good-faith estimate as to whether a project will exceed those thresholds.

Currently, Napa County governments are about nine to 12 months away from completing greenhouse gas thresholds for project owners to use, according to Cathy Roche, an attorney with Dickenson Peatman & Fogarty in Napa. She’s recommending her clients to incorporate commonly accepted green-building standards, such as adding trees to absorb carbon dioxide and improving pedestrian access to reduce vehicle travel.

“Show you’re doing the best you can,” Ms. Roche said.

Other mitigation efforts on the horizon include carbon sequestration by agriculture. The $500,000 Marin Carbon Project is compiling soil cores from three dozen ranches in Marin and Sonoma counties to find out how much carbon the grasses are pulling from the air via photosynthesis and transferring to the soil. Winegrape grower trade groups also are exploring the sequestration potential of vineyards.