No Standard for Evaluating GHG Impact

LOS ANGELES—A recent reversal on an EIR judgment regarding a residential-development project shows that analysis of greenhouse-gas emissions’ impact on climate change is complex and can hinder deals and development, Arthur Coon, shareholder and co-chair of Miller Starr Regalia‘s land-use practice group, tells GlobeSt.com. In a 5-2 decision filed November 30, the California Supreme Court reversed the judgment of the Court of Appeal, which had upheld the EIS/EIR for the controversial Newhall Ranch development project. The high court approved the EIS/EIR’s methodology analyzing the significance of the project’s greenhouse-gas emissions in terms of reductions from projected “business as usual” emissions consistent with AB 32′s statewide reductions mandate, rather than against some absolute numeric limit above the project site’s “baseline” emissions. However, it held the GHG analysis lacked supporting substantial evidence and a cogent explanation correlating the project-specific reductions to AB 32‘s mandated statewide reductions so as to demonstrate consistency with the latter’s goals under the approved methodology.

The Court further held the EIS/EIR violated Fish & Game Code § 5515′s prohibition on the taking of “fully protected” fish species by including mitigation measures providing for the collection and relocation by USFWS of the unarmored threespine stickleback.