The Center for Biological Diversity et al., v. California Department of Fish and Wildlife, and The Newhall Land and Farming Company, 62 Cal.4th 204 (2015)(hereafter, the Newhall Land case) addresses three issues: 1) whether the project level environmental impact report (EIR) validly determined that the development would not significantly impact the environment by its discharge of greenhouse gases (GHGs)?; 2) Were the mitigation measures adopted for the protection of a freshwater fish, the unarmored threespine stickleback, improper because they involved taking of fish prohibited by the Fish and Game Code?; and 3) Were plaintiff’s comments on two other areas of disputed impact submitted too late in the environmental review process to exhaust their administrative remedies under Public Resources Code section 21177? This post will only address the first question through an analysis of the Courts review of the project level EIR significance determination for GHGs under CEQA.
The Newhall Land case illustrates the difficulty of complying with statewide GHG reduction targets at the local level using a procedural environmental review mechanism (the California Environmental Quality Act (CEQA)) to determine whether an individual project’s GHG emission will, when understood cumulatively, create a significant environmental impact triggering an environmental impact review (EIR), mitigation, and/or statement of overriding consideration. Because CEQA is procedural and operates through lead agency discretion, AB 32 (2006) and its Scoping Plan create non-enforceable targets and recommendations for local governments, and little guidance, track record, or consensus exists for a standard to make GHG significant determinations at the project level, lead agencies and local governments are left to struggle with creating a defensible significance analysis and all the legal exposer. There is a need to create consensus around baseline and project level methodology for CEQA significance determinations to connect project level GHG emission impacts and mitigations with statewide and local GHG reduction targets.
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