A Step Closer To Regulatory Clarity? OPR Transmits Draft CEQA Guidelines To Resources Agency

Lead agencies reviewing development project proposals under the

California Environmental Quality Act ("CEQA") continue to

struggle to reconcile the implications regarding the project's

impact on climate change with Assembly Bill 32's1

mandate to reduce California's greenhouse gas ("GHG")

emissions to 1990 levels by 2020. The absence of formal

guidance has left lead agencies and project proponents facing

significant risk and uncertainty, as they have attempted to analyze

hard-to-quantify impacts, link the project causally to the global

problem of climate change, and adopt defensible mitigation.

This state of uncertainty recently moved a grade closer to

regulatory clarity as the Office of Planning and Research

("OPR") released a new version of proposed amendments to

the CEQA Guidelines that is aimed at providing guidance on

addressing climate change impacts ("Draft GHG

Guidelines").2 While the draft amendments to

the Guidelines must still undergo a formal rulemaking procedure

with the Resources Agency, the release of the Draft GHG Guidelines

by OPR marks a significant advance.

Although an improvement on the prior draft released by OPR, the

Draft GHG Guidelines still do not provide clarity, as the language

is often vague and fails to address some of the most vexing

issues. Lead agencies and project proponents need to be aware

of these important developments and should consider taking part in

the public comment opportunities during 2009.

Statutory Background

The key legislation behind the Draft GHG Guidelines is Senate

Bill 97,3 passed in 2007, which identified climate

change as an environmental effect and officially brought it within

the purview of CEQA. SB 97 also tasked OPR with developing

guidelines for mitigating the impacts of GHG emissions subject to

CEQA review.4 Under the statute, OPR must transmit

proposed guidelines for mitigating GHG emissions to the Resources

Agency by July 1, 2009. It is this step that OPR recently

accomplished. The Resources Agency in turn must certify and

adopt the amendments by January 1, 2010.5 Over the

following months, the Resources Agency will conduct a formal

rulemaking, including additional opportunities for public comment

on the proposed Guidelines.

In a parallel process, OPR asked the California Air Resources

Board ("CARB") to recommend a method for setting

"thresholds of significance" within CEQA for GHG

emissions. One of CEQA's linchpins is a determination of

significance: the threshold below which...