CEQA thresholds of significance for greenhouse gas emissions: a strange but good process
Way back in the old days, before 2006 and AB 32 (California’s landmark law limiting greenhouse gas emissions statewide), the California Environmental Quality Act (CEQA) was the critical tool to limit greenhouse gas emissions from projects around the state. CEQA is the law that requires state and local agencies to assess the significant environmental impacts of their actions and mitigate where feasible. Those actions include granting permits to real estate projects, among others. Suddenly the question became: how significant of an impact should a project have on the climate in order for it to have to undergo lengthy environmental review and mitigate those impacts? Would a new addition on a house have to measure its climate impact? Will a six-unit condominium project in Anaheim make life worse for the polar bears?
Conservatives hated it, liberals loved it, and it the topic became a bit of a political football during the 2007 state budget negotiations (remember those halcyon days?). SB 97 finally emerged to require the Office of Planning and Research (OPR) to promulgate guidelines on the topic. Specifically, developers and local agencies around the state needed to know when the climate impact would be considered legally significant enough to trigger CEQA review.
Now it’s 2009 going on 2010, and OPR is biding its time with its draft guidelines. In the vacuum of strong leadership from OPR, local air districts are taking the lead. Right now, the process is playing out with the Bay Area Air Quality Management District (BAAQMD — do I need a glossary for this post?). BAAQMD will be setting CEQA thresholds of significance for projects over the next month or so.
The process sounds strange. Greenhouse gas emissions are not like localized air pollution, which the local air districts were made to handle. AB 32 doesn’t concern itself with reducing greenhouse gas emissions in one air basin — the statute seeks to limit these emissions across the state. So why is this process now being handled piecemeal by local air districts? Isn’t it unfair that the same project may be deemed to have insignificant climate impacts in one city but significant impacts in another? Why isn’t OPR setting statewide standards?
I have no idea, but it may not be so bad after all. Collectively, the Bay Area is ground zero in California for fighting climate change (sorry SoCal). If any local air district is going to go above and beyond the call of duty, it’s likely going to be BAAQMD, and local infill developers in the Bay Area, among others, are pushing for strong standards. In other words, by letting the more progressive air districts go first, OPR is letting a sort of federalist process play out that will hopefully push the eventual statewide standards to be more strong than they would be otherwise.
But make no mistake: this process is critical. Strong thresholds of significance means that real estate projects, among others, will have to account for their impacts on open space, driving, energy use in the buildings, and even the kind of construction materials and building process they use. Weak thresholds mean business as usual, which as we all know in California is not great when it comes to the climate. And with the uncertainty surrounding the outcomes of the state and federal cap-and-trade plans, and the inevitable failure of California utilities to meet our renewable energy targets, CEQA may once again be our only hope for real, on-the-ground progress when it comes to reducing greenhouse gas emissions.
Ethan Elkind is the Director of the Climate Change and Business Program, with a joint appointment at UC Berkeley School of Law and UCLA School of Law. In this capacity, h…READ more