Tag: GHG emissions

West Coast Government Leaders Announce Landmark Climate Policy Accord

On Monday, October 28, 2013, California Governor Jerry Brown signed a landmark climate change agreement. Governor Brown met in San Francisco with the governors of Washington and Oregon and the Premier of British Columbia to announce the partnership. Also in attendance were British Columbia’s Minister of the Environment as well as business, labor, and environmental officials from the four jurisdictions. The deal is based on the contiguous geography and shared infrastructure of the West Coast and linked economies with a combined GDP of $2.8 trillion – collectively, the world’s fifth largest economy. A meeting with the leaders of provinces on the coast of China is scheduled for January 2014, at which point those provinces may join the current group.

The three states and Canadian province formally aligned their climate policies to collectively combat climate change and promote clean energy. Oregon and Washington will bring their efforts to reduce greenhouse gas emissions from vehicles and industrial sources closer to those of California and British Columbia. Oregon will set a price for carbon, and Washington will develop a cap-and-trade market. California and British Columbia will continue their current carbon-reducing pursuits, and the four jurisdictions will harmonize their 2050 greenhouse gas reduction targets. The plan also includes integrating regional electricity grids to provide greater access to renewable sources.

The agreement did not create the regional carbon market sought by California. However, the state is planning to open an emissions market with the Quebec province in 2014. In 2007, a group of western states and Canadian provinces came together in the Western Climate Initiative to create a regional market for greenhouse gas emissions. The group dispersed in 2011, as California and Canadian provinces pursued emissions trading, and the other states branched off to non-market-based strategies.

The accord originated from the Pacific Coast Collaborative, a group that, since 2008, has organized climate change and clean energy policies.

U.S. Supreme Court Takes Up the Issue of Greenhouse Gas Emissions Regulation in Coalition for Responsible Regulation v. EPA

On October 15, 2013, the U.S. Supreme Court granted certiorari in Coalition for Responsible Regulation v. EPA (2012) 684 F.3d 102. It is regarded as the most important federal case involving greenhouse gas emissions after its predecessor, Massachusetts v. EPA (2007) 549 U.S. 497.

Background

The case below involved a number of the U.S. EPA’s Clean Air Act rules regulating greenhouse gas emissions from stationary sources, such as large industrial plants, refineries, and factories. A three-judge panel of the United States Court of Appeals for the D.C. Circuit unanimously upheld the EPA’s rules in June 2012. Specifically, the court upheld the EPA’s endangerment finding for greenhouse gases and the agency’s decision that the endangerment finding made greenhouse gases an “air pollutant” for purposes of the Prevention of Significant Deterioration (PSD) program. The court also held that plaintiffs lacked standing to challenge how the rule is phased in.

Various interest groups and states submitted a total of nine petitions for certiorari, seeking to overturn the D.C. Circuit’s decision. The Supreme Court accepted six of these petitions.

The Court will consider the narrow issue of whether the EPA acted within its authority in determining that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements for stationary sources under the Clean Air Act. This means that the Court will leave some of the lower court’s findings undisturbed, including the endangerment finding and the “tailpipe rule,” which sets emissions standards for automobiles.

Issues

The challenged Clean Air Act provisions are the “timing” and “tailoring” rules, which together exempt small stationary sources from the greenhouse gas regulations that would otherwise apply. As enacted, the Act regulates every “source” of greenhouse gases emitting 100 tons of a single pollutant, including homes, apartment buildings, and small businesses. The EPA determined that regulating every source at that emission level would be both impractical and politically unpopular, so it created the tailoring rule to confine application of the Act to new sources emitting at least 100,000 tons of greenhouse gases per year and modifications of existing sources that increase emissions by 75,000 tons.

The industries and states challenging the tailoring rule argue that the rule is unlawful, since it relieves sources emitting between 100 and 100,000 tons from regulation when the statute clearly says those sources must be regulated. They also argue that the PSD provisions of the Act under which the EPA is regulating the larger emitters do not apply to greenhouse gases. The challengers believe the PSD provisions only apply to those pollutants on the National Ambient Air Quality Standards’ criteria pollutants list, which does not include greenhouse gases.

The criteria pollutant list is selective; it contains only six air pollutants which have a demonstrable effect on human health, such as lead and carbon monoxide. However, after the Court held that greenhouse gases are air pollutants under the Clean Air Act in the 2007 case Massachusetts v. EPA, the EPA found six greenhouse gases that must be regulated due to their threat to public health and welfare. Thus, though greenhouse gases are not technically listed as a criteria air pollutant, they have been found to be dangerous to human health. In fact, the PSD already applies to non-criteria pollutants, albeit more obscure ones like sulfuric acid mist. Plus, the EPA’s interpretation of its own statutes will be accorded significant deference under Chevron, which makes the challengers’ position an uphill battle.

The lower court never reached the substance of the challengers’ arguments because it found that they did not have standing, reasoning that regulating larger businesses while exempting smaller ones did not injure the larger businesses. In fact, the Court found that the tailoring rule could even help states like Texas – one of the states challenging the rule – because it would lessen the state’s burden in administering the Clean Air Act permitting program.

A ruling on the statutory interpretation issues could help to clear some of the ambiguities plaguing the Clean Air Act, which has not been amended since 1990. With the increasing national and international focus on climate change, environmentalists and industry alike would benefit from more guidance on how the Act applies to greenhouse gases. The Court will hear arguments in early 2014 and is anticipated to issue a ruling by July.

Third District Court of Appeal Finds EIR’s Greenhouse Gas Analysis for Wal-Mart Super Center Deficient for Improper Application of Significance Threshold

In Friends of Oroville v. City of Oroville, ___Cal.App.4th ___ (Aug. 19, 2013, Case No. C070448), the Third District Court of Appeal ruled that the City of Oroville misapplied the threshold-of significance standard in Assembly Bill 32 (the California Global Warming Solutions Act of 2006) when it approved an EIR for a new Wal-Mart Supercenter. In the published portion of the opinion, the court found that the city identified the proper significance threshold for the Wal-Mart project’s greenhouse gas (GHG) emissions. But the court held that the city failed to apply the standard properly because it a) applied a “meaningless” number to determine insignificant impact and b) failed to ascertain the existing GHG emissions for the project. The case provides clear guidance for an agency making a determination under CEQA of GHG emissions impacts.

The project involved the relocation and expansion of an existing Wal-Mart store. At the time the EIR was developed, neither the city nor the Butte County Air Quality Management District had adopted a plan for reducing greenhouse gas emissions that would be applicable to the project. Therefore, the city adopted a standard that asked whether the project would “significantly hinder or delay” California’s ability to meet the reduction targets in Assembly Bill 32, which seeks to reduce greenhouse gases including carbon dioxide to 1990 levels by the year 2020. The EIR noted that the State Air Resources Board’s Scoping Plan for achieving that goal calls for cutting approximately 30 percent from “business-as-usual” emission levels projected for 2020. The court found this standard proper.

The city’s error came when it compared the project’s estimated carbon dioxide emissions at build-out with the entire state of California’s 2004 GHG emissions. The calculation showed the project’s emissions constituted just 0.003 percent of the state’s total emissions. The EIR concluded the impact was less than significant because it would not significantly hinder or delay California’s ability to meet the GHG reduction targets in Assembly Bill 32. In a sharp rebuke, the court called the comparison “meaningless” and “worse than apples to oranges” because “[o]f course, one store’s GHG emissions will pale in comparison to those of the world’s eighth largest economy.”

The court pointed to Citizens for Responsible Equitable Environmental Development v. City of Chula Vista (2011) 197 Cal.App.4th 327, for the proper application of the standard. According to the court, the relevant question is whether a project’s emissions should be considered significant “in light of the threshold-of significance standard of Assembly Bill 32, which seeks to cut about 30 percent from business-as-usual emission levels projected for 2020 [emphasis added].”

The court also found the EIR deficient because it failed to ascertain or estimate the effect of the project’s mitigation measures on GHG emissions. The court stated: “Without these determinations, ascertaining whether AB 32’s target reductions are being met is difficult if not futile.” In its disposition, the court reversed the trial court’s denial for writ of mandate and remanded with directions to grant the petition as to the issue of greenhouse gas emissions and payment of transportation-related fees.
[written by Deb Kollars]

First District Holds That Air District’s Adoption of Significance Thresholds for Greenhouse Gas Emissions Is Not a CEQA Project and Does Not Require an EIR

In California Building Industry Association v. Bay Area Air Quality Management District (August 13, 2013, Case No. A136212) ___ Cal.App.4th ___, the First District Court of Appeal reversed a trial court’s decision striking down the Bay Area Air Quality Management District’s (BAAQMD’s) CEQA thresholds of significance for greenhouse gas emissions. The appellate court held that CEQA does not require BAAQMD to prepare an environment impact report (EIR) before adopting “thresholds of significance” to assist in the determination of whether air emissions of proposed projects might be deemed “significant.”

On June 2, 2010, BAAQMD adopted CEQA thresholds of significance for greenhouse gas emissions. The thresholds also set standards for impacts related to toxic air contaminants (TACs) and very small particulate matter (PM2.5). The thresholds were adopted pursuant to CEQA Guidelines section 15064.7, which encourages agencies to “develop and publish thresholds of significance” for “general use as part of the lead agency’s environmental review process.” The section further mandates that the thresholds be “adopted by ordinance, resolution, rule, or regulation, and developed through a public review process and be supported by substantial evidence.”

The California Building Industry Association (CBIA) filed a petition for writ of mandate challenging BAAQMD’s adoption of the thresholds. CBIA argued the issuance of the thresholds was a “project” under CEQA, and that BAAQMD had violated CEQA by not preparing an EIR before adopting the guidelines. CBIA claimed the thresholds were too stringent and would discourage developers from building desirable urban infill projects close to public transportation by making the CEQA review process more burdensome and expensive. This, in turn, would result in more housing being built in the suburbs, causing more commuter traffic and more traffic-related emissions. This increased pollution, CBIA argued, was an adverse impact mandating preparation of an EIR.

The Alameda County Superior Court agreed, ruling that the adoption of the thresholds was a project under CEQA and entered an order awarding the CBIA substantial attorney fees under Code Civil Procedure section 1021.5.

The First District Court of Appeal reversed, reasoning that (1) the district’s adoption of thresholds was not a “project” within the meaning of CEQA and (2) there were no reasonably foreseeable impacts associated with this action.

CEQA defines a project as any activity “which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.” (Pub. Res. Code, § 21065.) The appellate court concluded that the adoption of thresholds was not a project. BAAQMD relied on CEQA Guidelines section 15064.7 in promulgating the thresholds. The court explained that section 15064.7 establishes the procedures for adopting thresholds in some detail, and CEQA review is not part of that procedure. Section 15064.7, subdivision (b), provides that thresholds of significance must be formally adopted through a public review process and supported by substantial evidence if, as in this case, they are to be placed in general use. The agency accepted public comments and responded to comments. Striking an uncommon tone, the court concluded that this process was substantially similar to the EIR process and that requiring more would be a duplicative effort and a waste of tax dollars.

The court noted in any event, the action was not a “project” because the activity would not cause a direct physical change in the environment or a reasonably foreseeable indirect physical change. (Pub. Res. Code, § 21065; CEQA Guidelines, § 15378, subd. (a).) CBIA argued that impacts were reasonably foreseeable because the thresholds were more stringent than earlier thresholds and would require a more thorough environmental analysis; as a result, the CEQA process would become more burdensome, making urban development less desirable and leading to more suburban development with all its attendant impacts including traffic and air quality impacts.

The court was not persuaded, instead reasoning that the analysis posited by CBIA included many assumptions and a great deal of speculation because “the extent to which land development projects might be relocated to a more suburban location would require a prescience we cannot reasonably demand of the [BAAQMD].” The court, therefore, concluded that no CEQA review was required before BAAQMD promulgated the thresholds.

In its petition for writ of mandate, CBIA raised several challenges to the substance of the thresholds that were not decided by the trial court. Though CBIA failed to cross-appeal, the appellate court agreed to consider the other two issues. First, CBIA argued that the standards were inappropriate in any event because they evaluated the effects of the environment on sensitive receptors as part of the project; this is contrary, it argued to the purpose of CEQA, which is to protect the environment from proposed projects, not protect the proposed projects from the existing environment. The court cited a long line of cases for this proposition, including the recent Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455. The court did not address whether Ballona, et al., were correctly decided, or whether, as a general rule, an EIR may be required solely because the existing environment may adversely affect future occupants of a project. Instead, finding CBIA’s claim that the receptor thresholds were unauthorized by CEQA analogous to a claim a statute or regulation is unconstitutional on its face, the court held that the regulations were not facially invalid because they were relevant for purposes other than determining the effects of the environment on the project. The court also suggested that continuing vitality of Ballona, et al., was better reserved for a case in which the receptor thresholds were actually applied to a project.

As to the second CBIA challenge not ruled on by the trial court, the First District concluded that BAAQMD’s TAC Single-Source and Cumulative Thresholds were supported by substantial evidence and upheld them.

In reversing the trial court’s judgment in CBIA’s favor and declining to grant the relief CBIA sought on the issues not resolved by the trial court, the court of appeal also reversed the substantial attorney’s fees award, concluding the industry association was no longer the successful party under Code of Civil Procedure Section 1021.5.