By Charity Schiller and Matthew Collins, BB&K.
The scientific community largely accepts that the climate is changing, and that there is a “greater than 95 percent” chance that we are the cause. In late 2015, nations around the world gathered in Paris to attempt to combat this trend and adopt the most ambitious climate change agreement in history. Recently, the federal government shifted its focus away from addressing the adverse effects of climate change. In response, state and local governments are seizing a unique opportunity to utilize their existing powers to affect global change from a local level.
The Paris Agreement, or Paris climate accord, is an agreement within the United Nations Framework Convention on Climate Change attempting to address greenhouse gas emissions mitigation and climate adaptation. The central goal of the Paris Agreement is to keep global temperature rise below two degrees Celsius, the point at which scientists argue the truly dangerous effects of climate change will kick in. While each country maintains the right to determine, plan and report on its own contribution of GHG emissions, the signatory nations agreed to put forward “their best efforts” to achieve “nationally determined contributions.”
Since the negotiations concluded in late 2015, 148 of the 197 signing countries have accepted or agreed to voluntarily comply with the terms of the Paris Agreement, including China. While many in the United States, including the former administration, supported the agreement, the U.S announced earlier this month that it would withdraw. A few weeks later, the U.S. reaffirmed its intentions by refusing to sign the Group of Seven’s pledge to reaffirm their Paris commitments.
In the wake of the federal government’s withdrawal from the Paris Agreement, states, local governments and private industry have taken on a broader role in addressing these issues by openly announcing their own dedication to combat climate change. Appropriate given the “global” size of its economy, California is leading the way. For example, California officials have been busy meeting with world powers, such as Germany and China, to continue the fight against climate change.
For some, this type of sub-national leadership is crucial now more than ever. One supporter of this movement is former President Barack Obama, who expressed confidence that “states, cities, and businesses will step up and do even more to lead the way . . . for future generations . . . .” With federal focus shifting away from climate-related issues, many recognize that “[l]ocal actions are critical for implementation of California’s ambitious climate agenda.” Fortunately, local agencies have a wide variety of tools available that provide opportunities for taking a leadership role in addressing these issues:
Local Agencies Can Adopt Climate Action Plans
A climate action plan is a plan that outlines the activities an agency will take to reduce GHG emissions on a jurisdiction-wide basis. Among other things, a CAP will often provide a reduction target for a community, setting a tangible goal for emission-reduction efforts. Though developing a workable plan can be complex, CAPs provide many benefits to local agencies. One benefit is that they focus on achieving the greatest emission reductions in a cost-effective way. As such, local agencies can use CAPs to set and realize GHG emission reduction goals that are feasible for the unique characteristics of their community, considering: climate, resources, size, and nature of development. CAPs can also be used to achieve related benefits, such as increased energy efficiency and affordability, improved public health, and more sustainable communities. Additionally, under the California Environmental Quality Act, a lead agency (i.e., the public agency responsible for carrying out or approving a project) may streamline review of projects in certain circumstances. Moreover, CAPs are one of the strategies that CARB advocates in The 2017 Climate Change Scoping Plan Update. A number of California cities and other public agencies have already adopted CAPs, GHG reduction plans or other sustainability plans.
Local Agencies Can Adopt Ordinances and Resolutions to Fight Climate Change
Local agencies are well positioned to address climate change at a local level because they have broad jurisdiction and influence over activities that contribute directly and indirectly to GHG emissions. Some of the tools that local agencies have at their disposal are: planning and permitting processes, discretionary actions, local codes and ordinances, and resolutions. For example, California state law authorizes local governments to enact local ordinances amending building standards. According to CoolCalifornia.Org, buildings contribute nearly one quarter of California’s GHGs. Local agencies can help reduce this number by adopting “green building” ordinances, codes and standards. Other actions might include resolutions that mandate that new municipal buildings meet “LEED” certification. However, local agencies are not limited to ordinances and resolutions that mandate greener buildings. For example, in Chula Vista, the Free Resource & Energy Business Evaluation Ordinance requires businesses with storefronts or offices to participate in a free on-site energy evaluation of their facility. After the first year the ordinance was enacted, 71 percent of the businesses that participated had implemented the recommendations they received.
Local Agencies Have Discretion to Set Thresholds of Significance under CEQA
CEQA mandates that a lead agency consider whether a project’s GHG emissions will result in a significant impact on the environment. Fortunately, lead agencies have broad discretion to develop thresholds of significance to use in deciding whether a project may have a significant effect on the environment. For example, a lead agency located within an air quality management district may elect to use that air district’s thresholds. Another potential option is for the lead agency to develop its own thresholds of significance by using, among other potential resources, a local emissions inventory. Because an agency’s threshold of significance is subject to review only as to whether it is supported by substantial evidence, an agency may use this discretion to pursue particular policy objectives related to reducing GHG emissions and combatting climate change. For example, in the 2013 California Court of Appeal decision North Coast Rivers Alliance v. Marin Municipal Water District, the court upheld a threshold of significance that assessed whether the project would interfere with the county’s GHG emission reduction goal. As a result, CEQA thresholds of significance represent yet another tool in a local agency’s fight to address climate change.
Many California communities have begun to take advantage of their inherent authority to take a more active role in these issues. As we move forward, state and local agencies are in a unique position to truly affect global change from a local level.
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Charity Schiller is a partner in Best Best & Krieger LLP’s Environmental Law & Natural Resources practice group. She can be reached at charity.schiller@bbklaw.com
Matthew Collins is an attorney at Best Best & Kreiger LLP and a member of the firm’s Environmental Law & Natural Resources practice group. He can be reached at matthew.collins@bbklaw.com