As environmental regulations continue to evolve in California, cities, counties and other public agencies have an opportunity to streamline environmental review for key infrastructure, transit and other projects. Although recent court decisions may bring changes to the guidelines that must be followed when bringing a project in line with the California Environmental Quality Act, the state’s overarching environmental law known widely as CEQA gives public agencies options that may simplify the approval process for their proposed projects.
Another law, firmly entrenched in California and already tested with the voters when a 2010 proposition aimed at delaying its implementation failed, requires that public agencies reduce their greenhouse gas emissions by 2020. That goal can be used to a public agency’s advantage: Cities and counties can integrate greenhouse gas emission reduction efforts into their general plans by adopting climate action plans. Other public agencies can integrate greenhouse gas reducing measures into systemwide facilities planning. Both efforts can help streamline the environmental approval process for projects, and agencies can look no further than the geography of their jurisdictions to help find answers.
Climate Action Plans
As most public agency representatives are aware, several recent laws mandate reducing greenhouse gas emissions through land use, transportation and environmental planning. Assembly Bill 32, known as the Global Warming Solutions Act of 2006, charged the California Air Resources Board with reducing statewide greenhouse gas emissions to 1990 levels by the year 2020. This statewide goal now extends to all public agencies by virtue of the recently amended CEQA guidelines, which require public agencies to consider greenhouse gas emissions as part of their environmental review for new projects.
One of these specific amendments was a provision giving local agencies the option of preparing and adopting a climate action plan, or CAP. Such plans quantify greenhouse gas emissions over time within a particular geographic area, establish thresholds below which those emissions will be less than significant, and implement specific actions to ensure that projects reduce their greenhouse gas emissions. Although climate action plans streamline greenhouse gas analysis for later projects, the adoption of the climate action plan requires up-front environmental review.
A more recent law, Senate Bill 375 (2008), requires land use jurisdictions to update their general plans consistent with housing allocations that are designed to co-locate housing with transportation corridors. Essentially, this law aims to reduce sprawl and encourage public transportation use by forcing local land use jurisdictions to consider the regional implications of their transportation and housing projects. Through this law, the state has sought to take cars off the road and cut commute times, thus reducing greenhouse gas emissions from the transportation sector.
The Practical Side of Climate Control
Overall, these climate change laws have drawn a mix of praise and criticism. Although many support the overall idea of reducing greenhouse gas emissions and associated climate change impacts, that support is tempered by several “real life” difficulties.
For example, limitations on public agency conditioning powers means that a larger share of greenhouse gas reduction responsibilities falls to new projects, while existing development (often older and less energy-efficient) is left alone. Similarly, SB 375’s mandate to reduce “sprawl” – which strongly encourages reuse and infill projects within existing developed areas – unfairly deprives many cities and counties of the growth and economic development already enjoyed by the Bay Area, coastal Southern California and other highly developed areas. Likewise, the eastern areas of the state may be able to utilize California’s sunny deserts and windy passes to cultivate renewable solar and wind projects that offset greenhouse gas emissions – resources that are often unavailable in coastal areas.
Added to these geographical differences are the time delays, cost increases and political pressures that CEQA litigation places on projects crucial for meeting the mandates of AB 32 and SB 375. Many environmental and community groups continue to challenge the renewable energy, public transportation and infill projects that are vital to achieving statewide greenhouse gas emissions. Recent legislation has sought to streamline the litigation process for certain qualifying “leadership” projects through Assembly Bill 900 (2011), but very little has been done to actually eliminate the filing of lawsuits that challenge local agency approvals under CEQA.
In sum, state law does not level the playing field with regard to the ease or difficulty of meeting AB 32’s GHG reduction mandates or SB 375’s anti-sprawl policies. So, are local agencies completely stymied in their ability to meet state mandates regarding climate change? Not necessarily. In fact, it is these differences among circumstances, geographic regions, and legal authority that may help local agencies meet California climate change demands and streamline the CEQA process.
A city or county may start with its land use powers by amending their zoning ordinances to allow denser residential or multiple-use development near transportation corridors, consistent with SB 375. Cities and counties with desert or windy areas might also designate renewable energy zones through their general plan processes to encourage the development of solar and wind projects. Similarly, cities and counties could consider developing a suite of greenhouse gas reducing measures that apply to particular types of development, including compliance with green building standards, integration of purple-pipe reclaimed water systems, or the addition of small-scale solar arrays to particular types of developments. In addition, cities and counties should consider their status insofar as buildout is concerned. Those cities and counties that are largely built out may need to dig deeper in terms of recycling efforts and energy conservation than jurisdictions that currently have large undeveloped areas. Conversely, areas that are not yet built out will likely need to increase their attention on meeting SB 375’s anti-sprawl policy goals.
If you are a public agency without general land use powers, such as a special district, a different group of challenges will likely be the focus. Although special districts may lack the authority to broadly condition new projects, special districts may nonetheless adopt standards requiring new developments to meet water usage or energy efficiency demands. Similarly, and unlike those agencies with general land use powers, special districts often have the benefit of controlling all of their own facilities. This benefit may simplify the implementation of greenhouse gas reduction measures. Similarly, most special districts have the authority to modify their own operations to reduce energy usage through the use of reclaimed water, the installation of artificial turf, the placement of small solar arrays, or the decision to upgrade transportation fleets or other mechanical equipment to be energy efficient.
Certainly all of these strategies come with a monetary cost. But remember that the ultimate goal of adopting a climate action plan or approving other greenhouse gas reducing measures is to earn your agency long-term planning and speedier environmental review, which may reduce costs overall. For example, where a project is consistent with a climate action plan and implements the measures called for by the plan, the local agency may be able to conclude that a site-specific project’s greenhouse gas emissions and climate change impacts are less than significant – thus reducing and streamlining the scope of CEQA review. Similarly, projects that are consistent with the requirements of SB 375 (something that a climate action plan can help to document) may be exempt from certain CEQA requirements, again reducing the level of environmental review. Likewise, where an agency has adopted a threshold of significance for greenhouse gases through a climate action plan, the agency’s later application of that threshold to site-specific development may be beyond challenge in court.
In sum, the more planning that is done up front to reduce greenhouse gas emissions, the easier and faster it should be to get key projects through the environmental approval process.
Charity B. Schiller is a senior associate in the Environmental Law & Natural Resources practice group of Best Best & Krieger LLP in Riverside. Known for working on infrastructure and transportation projects, her practice focuses on helping public and private clients to comply with all aspects of the California Environmental Quality Act and National Environmental Policy Act. She can be reached at Charity.Schiller@bbklaw.com