Ever since Assembly Bill 32 mandated reducing California’s greenhouse gas (“GHG”) emissions to 1990 levels by 2020, lead agencies reviewing development project proposals under the California Environmental Quality Act (“CEQA”) have struggled to reconcile CEQA’s requirements with AB 32’s implications regarding the project’s impact on climate change. The absence of existing regulations or published case law to guide climate change analysis under CEQA has left lead agencies and project proponents facing significant legal uncertainty and vulnerability, as they have attempted to analyze hard-to quantify impacts, link the project causally to the global problem of climate change, and adopt defensible mitigation. 2009 promises significant evolution of the law on this issue, starting off with proposed amendments to the CEQA Guidelines recently released by the Office of Planning and Research (“OPR”) (“Draft GHG Guidelines”) which seek to provide clarity on how to analyze climate change impacts under CEQA.
While CEQA practitioners have long awaited guidance, the Draft GHG Guidelines do not ensure clarity, as much of the proposed language is vague and fails to address some of the most vexing issues. Final regulations will be approved by the Resources Agency by the end of this year, after a formal rulemaking process that will include another round of public comments. Lead agencies and project proponents need to be aware of these important developments and should consider taking part in the public comment opportunities during 2009.
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