Is A 16% Reduction in GHG Emissions From "Business-As-Usual" Enough Under CEQA?

by Stoel Rives LLP

Our previous post on the Second District Court of Appeal’s decision in Center for Biological Diversity v. Department of Fish & Wildlife, No. B245141 (Mar. 20, 2014), highlighted the court’s holdings on California Environmental Quality Act (CEQA) and California Endangered Species Act (CESA) issues.  The opinion also provides a useful (although unpublished) discussion on how to evaluate the significance of a project’s greenhouse gas (GHG) emissions under CEQA.  This post examines the court’s GHG analysis, and adds observations regarding the California Air Resources Board’s (CARB) May 22, 2014 adoption of the First Update to the AB 32 Scoping Plan (Updated Scoping Plan). 

In Center for Biological Diversity, the court agreed with the approach for evaluating GHG emissions previously upheld by the Third District Court of Appeal in Friends of Oroville v. City of Oroville (2013) 219 Cal.App.4th 832, and the Fourth District Court of Appeal in Citizens for Responsible Equitable Environmental Development v. City of Chula Vista (2011) 197 Cal.App.4th 327. 

The court considered whether that the Department of Fish and Wildlife (Department) had properly analyzed the significance of the Newhall Ranch project’s GHG emissions by determining whether the project would impede the state’s goal under AB 32 of reducing overall GHG emissions to 1990 levels by the year 2020.  (See CEQA Guidelines § 15064.4 [lead agency to consider the significance of a project’s GHG emissions by (1) determining an environmental baseline, (2) determining a significance threshold, and (3) reviewing the project for compliance with other agencies’ GHG emissions reduction requirements].)  The court concluded that the Department appropriately relied on compliance with AB 32 as a significance threshold to gauge whether the Newhall Ranch project’s GHG emissions would result in a significant environmental impact.  (Slip Op. at pp. 92-93, 105-07.) 

To determine whether the project would impede the state’s ability to achieve AB 32, the Department referenced CARB’s Climate Change Scoping Plan (Initial Scoping Plan), which found that a 30% reduction in GHG emissions from “business-as-usual” would be required to achieve AB 32’s GHG reduction goal.  (See Slip Op. at p. 93.)  The term “business-as-usual” (BAU) refers to emissions levels absent the implementation of GHG emissions reduction measures, such as increased reliance on renewable energy and energy efficiency technologies.  (Id. at pp. 93-94.)

The Department determined that the project would result in 269,000 metric tons of GHG emissions on an annualized basis, taking into account new environmental efficiencies and strategies.  (Slip Op. at p. 102.)  By contrast, under the BAU scenario, the project would result in 390,046 tons of GHG emissions.  (Id.)  Because the project’s implementation of GHG emissions reduction measures would result in a 31% reduction from BAU, the court concluded that the Department correctly found that it would not impede AB 32’s goals and would not constitute a significant environmental impact.  (Id. at pp. 106-07.)

On May 22, 2014, CARB adopted the Updated Scoping Plan.  The Updated Scoping Plan notes that “total statewide GHG emissions decreased from 466  MMTCO2e in 2000 to 459 MMTCO2e in 2012 – a decrease of 1.7 percent. . . . California’s population grew by 11.3 percent between 2000 and 2012.  As a result, California’s per capita GHG emissions have decreased by 11.6 percent between 2000 and 2011.  The recent recession had a major impact on GHG emissions between 2008 and 2009, when emissions decreased by almost 6 percent.”[1]  (Updated Scoping Plan at pp. 90-91.) 

Changes to two key AB 32 assumptions in the Updated Scoping Plan are noteworthy. 

First, the Updated Scoping Plan revises the 2020 goal (i.e., the state’s 1990 GHG emissions threshold) slightly upward from 427 MMTCO2e to 431 MMTCO2e (a less than 1% increase).  (Compare Initial Scoping Plan at p. 12, with Updated Scoping Plan at pp. 92-93, Table 5.) 

Second, the Updated Scoping Plan revises estimated 2020 BAU emissions downward, from 596 MMTCO2e to 509 MMTCO2e (approximately a 14.6% reduction).  Compare Initial Scoping Plan at p. 13, Table 1, with Updated Scoping Plan at p. 93, Table 5.)

How are these revisions relevant to a significance analysis of GHG emissions under CEQA?  Relying on the Initial Scoping Plan, many agencies adopted the 30% reduction of GHG emissions from BAU as the relevant CEQA significance threshold. [2]  Using the new assumptions in the Updated Scoping Plan and employing the same logic, however, a 16% reduction of GHG emissions from BAU may be defensible. [3] 

The juxtaposition of the Center for Biological Diversity decision and CARB’s Updated Scoping Plan raises a question for lead agencies to consider:  would a project that reduces its GHG emissions at least 16% below BAU be able to demonstrate a less than significant impact under CEQA? 

[1] The Updated Scoping Plan reports all anticipated GHG emissions in terms of millions of metric tons of carbon dioxide-equivalent emissions (MMCO2e).  (Updated Scoping Plan at p. 2.)

[2] See Initial Scoping Plan at p. ES-1 (“Reducing greenhouse gas emissions to 1990 levels means cutting approximately 30 percent from business-as-usual emission levels projected for 2020, or about 15 percent from today’s levels.”).  CARB arrived at this 30% figure by calculating as follows:  (596 MMTCO2e – 427 MMTCO2e)/596 MMTCO2e = ~30%. 

[3] (509 MMTCO2e – 431 MMTCO2e)/509 MMTCO2e = ~ 16%. 


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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