Landmark CEQA/Climate Change Settlement

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On August 21, 2007, California’s Attorney General Jerry Brown announced a settlement of the recent controversial CEQA lawsuit his office brought against San Bernardino County, involving the extent to which the County’s EIR for its General Plan update should address impacts on climate change. The settlement is important because it requires a California agency for the first time to inventory historical (as of 1990), current, and projected greenhouse gas (“GHG”) emissions, to set a target for reducing GHG emissions, and to develop measures to reduce such emissions. This contentious case has been closely watched by environmental groups and project proponents alike, for guidance as to how climate change should be addressed in CEQA documents. This issue has become the hottest topic in CEQA. Particularly since the passage of AB 32, environmental

groups have aggressively asserted that CEQA requires both an analysis of a project’s impacts on climate change and the incorporation of mitigation measures to reduce such impacts. Project proponents have argued that such analysis cannot be done until thresholds of significance are

established, that the issue should wait for regulations to be promulgated by the California Air Resources Board under AB 32, and that requiring climate change analysis now could significantly stall greatly needed housing and infrastructure projects around the state. Attorney General Brown’s case has been so controversial that Republican state senators refused to pass the state budget without legislation protecting certain transportation and levee infrastructure projects from similar lawsuits. While the settlement does not provide answers to how an EIR should address climate change, the mitigation measures agreed to in the settlement may foretell a trend of local agencies’ mitigating the impacts of discretionary approvals on climate change.

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