Court Rules on CEQA Greenhouse Gas Guidelines

LOS ANGELES—Newhall Land has been in an out of court over the past 20 years trying to get its mega-development Newhall Ranch in Valencia, CA, off of the ground. The latest court decision could now affect other California developers going through the CEQA process. The decision found that the developer did not have evidence in the records to support its greenhouse emissions analysis under CEQA, which could potentially set a new president by which greenhouse gas emissions under CEQA are collected. To find out more about the CEQA greenhouse gas emissions guidelines, the court's decision and what developers need to know, we sat down with Barbara Schussman, an attorney at Perkins Coie, for an exclusive interview.

GlobeSt.com: First, tell me about the CEQA greenhouse gas emission guidelines that were established a few years ago.

Barbara Schussman: Essentially, the state decided that they would not dictate a specific significant threshold for greenhouse gas emissions, but rather recognized that setting up the threshold was up to the discretion of each lead agency preparing a CEQA document. The guidelines list several factors that agencies should consider when analyzing greenhouse gas emissions, but didn't say that any one of those factors necessarily has a result in a specific threshold. The court in Newhall Ranch explained all of that and upheld the view that agencies have discretion and that an increase compared to existing conditions was not necessarily a significant impact under CEQA.

The court found that the analysis at Newhall Ranch was consistent with the new guidelines, whether they applied or not, and that the lead agency did in fact have the discretion that it did. The court, however, did rule that there was not evidence in the records supporting the analysis of whether the project met the standard.

GlobeSt.com: How does the court decision affect these guidelines?

Schussman: The core issue is the baseline that one has to use to measure greenhouse gas emissions against. There is a widely held view that all impacts under CEQA have to be measured against the actual conditions that are either occurring at the time of commencement of the environmental review or at least have historically occurred before the environmental review.

GlobeSt.com: How are green house emissions measured now?

Schussman: Greenhouse gas emissions have been handled in a variety of different ways. One of the ways in which people have looked at it and the way that the Department of Fish and Wildlife looked at it in Newhall Ranch is that rather than comparing greenhouse gas emissions to what occurs under existing conditions, one compares it to what would have been the emissions if the state had not enacted a variety of different regulations to bring down greenhouse gas emissions. It is an unusual way to look at impacts in a CEQA document, but the reason that it works for greenhouse gasses is that it is really a policy determination that the state made to lower emissions while still accommodating growth. If you only compare to existing conditions, you would never be able to accommodate growth. The issue is: are you contributing as much as is needed on a policy level to the overall state goal of reducing compared to 1990 levels?

GlobeSt.com: How will this decision affect developments that are currently underway?

Schussman:This could have a fairly wide effect. A lot of CEQA documents are using thresholds that agencies have pulled from the California Air Resources Board, where the scoping plan is very similar to what was done at Newhall Ranch, or other thresholds that air districts have promulgated. The court seems to be requiring a lot more detailed analysis as to whether that numeric threshold demonstrates compliance with the state goals for a particular project, and that analysis is often not included in a CEQA document. If a CEQA document were underway and they don't have that information in it, that could be problematic for projects that are in progress in the approval process. If they have already been fully approved, it won't be an issue.

GlobeSt.com: Have you already experienced clients concerned about this issue?

Schussman: Yes, we put out a blog entry to our client base and several clients immediately called and were concerned. In the Bay area, there is a threshold that the Bay Area Air Quality promulgated there is quite a bit of technical support for those thresholds and the court indicated some approval for using those thresholds, so certainly clients would be well served if they are in this region. Clients outside of that region can have a qualified consultant do additional work to demonstrate what reduction would be needed for the project to meet the state standard, but that will require a large amount of technical work. There will certainly be a greater cost.