Oringally published in Law 360 on August 11, 2011

An increasingly common tactic among opponents of development projects is to demand that the applicant adopt a long, typically boilerplate, list of measures to mitigate the projects’ contributions of greenhouse gases. Then in court, they argue that under the California Environmental Quality Act (“CEQA”) the city or county must either adopt those measures or prove that each and every one of them is infeasible. On July 26, 2011, a California court of appeal published an opinion rejecting this tactic.

The case is noteworthy in a few respects: (1) the factual history illustrates just how difficult it has become to develop anything in California in the face of public opposition; (2) it provides a road map for adequately analyzing a project’s greenhouse gas impacts; and (3) it puts to rest the assertion that a municipality must undertake the extremely onerous task of responding to each and every conceivable mitigation measure that the project opponent throws at it.