In California, project sponsors and government agencies are facing increased pressure to analyze the impact of proposed projects on climate change. The California Environmental Quality Act (CEQA) requires a lead agency, before approving a project, to evaluate the potentially significant environmental impacts of that project and to adopt feasible measures to mitigate those impacts.

These requirements place project sponsors and California agencies in a difficult position because there is currently no regulatory guidance on how to evaluate an individual project’s contribution to climate change, much less how to determine whether a project’s potential contribution to climate change is “significant.” To address this difficulty, the Governor’s Office of Planning and Research (OPR) has been instructed to develop CEQA guidelines “for the mitigation of greenhouse gas emissions or the effects of greenhouse gas emissions.” OPR must complete its draft guidelines by July 1, 2009.

In the meantime, some California agencies have decided to take a stab at discussing greenhouse gas emissions. In the environmental documents it received from public agencies during a seven-month period in 2007, OPR determined that 82 (or 4.8% of the environmental documents it received) discussed greenhouse gas emissions or climate change. While some of these agencies made findings of significance regarding the projects’ impact on climate change, other agencies concluded that the projects’ impact on climate change were too speculative for evaluation. CEQA specifically allows a lead agency, after thorough investigation, to terminate its discussion of a particular impact if it determines that the impact is too speculative for evaluation.

Nevertheless, two public interest groups recently challenged the City of Perris’ environmental review and approval of a proposed shopping center, arguing that the City improperly terminated its discussion of global climate change. (Los Angeles Superior Court Case Nos. 477632 and 477811.)

During the administrative proceedings, the City’s consultants reviewed scientific literature and other agencies’ environmental studies to determine whether a methodology could be developed for a meaningful, non-speculative analysis of the project’s contribution to global climate change. After extensive review, the City determined that any analysis of global climate change as it related to the project would be speculative. Thus, the City terminated its discussion of the impact.

In the ensuing litigation, the Riverside Superior Court upheld the City’s environmental analysis. In so holding, the Court reinforced a lead agency’s right to terminate its discussion of a speculative impact. Notably, however, the Court relied heavily on the extensive evidence that was marshaled by the City to support its determination that it would be impossible to meaningfully evaluate the project’s impact on global climate change.

For further information about this topic, please contact Akin Gump.