Guidelines Without Guidance

The Governor's Office of Planning and Research (OPR), the division of government charged with administering the California Environmental Quality Act (CEQA), has released draft "guidelines" instructing state agencies how to evaluate the impact of projects they approve or undertake on Greenhouse Gas Emissions (GHG). Anyone who was hoping for real help from OPR in how to tackle this difficult issue must be very disappointed.

In 2007, the Legislature and the Governor enacted SB 97, a statute that authorized OPR to issue these CEQA guidelines relating to GHG emissions. The rationale for adopting the law was that agencies needed some direction in how to deal with GHG and climate change in their CEQA environmental review process. After the passage of AB 32, it became clear that GHG emissions would be an important part of the environmental review of nearly every major project in California. But figuring out when a project would have a "significant" impact on the state's total GHG emissions, or on climate change in general, was no easy task. The Legislature therefore asked OPR to develop guidelines that would specifically address how GHG emissions and climate change should be addressed in CEQA documents.

OPR has apparently decided to take a milquetoast approach to meeting their mandate to provide agencies with guidance on how to address the GHG issue. The draft guidelines read like a document drafted by lawyers rather than scientists who might actually have something interesting to say about methods for estimating GHG emissions and their significance, in spite of the fact that OPR claims they consulted with a variety of experts to develop the guidelines. The draft guidelines do little more than apply existing CEQA statutes and case law to the GHG issue. Of course, that's exactly what every lead agency and court in the state would be doing even if OPR didn't undertake this task, so it doesn't appear that they're contributing much of substance.

OPR could have taken their mandate in SB 97 to devise methods of mitigating GHGs and related impacts more seriously. Public Resources Code section 21083.05 (enacted as part of SB 97) gave them a pretty broad mandate, had they chosen to use it. Instead, they took a very conservative approach that hewed closely to the language of existing statutes and regulations, and they punted the really hard, really technical question (how to determine a proper standard of significance) to CARB. Maybe OPR didn't feel up to the task.

Draft section 15064.4(a) lists criteria that a lead agency should consider when determining the significance of a projet. It expressly mentions the State's overall AB 32 objectives, which are focused on 2020 as an end date. It doesn't mention the Governor's own Executive Order S-3-05, which requires even more draconian reductions by 2050. Nor does it make any mention of the regional GHG reduction targets that CARB will be devising under SB 375, adopted last year. Those regional targets will certainly be relevant to transportation and land use planning projects (general plans, Regional Transportation Plans, etc.), even if they are not applicable to all projects subject to CEQA. It strikes me as curious that these other targets/objectives are not even mentioned. It would have been fairly easy to draft some short, pithy language to include in 15064.4 that could have really added some backbone to CARB's regional GHG targets in particular. As it stands, nearly every project or plan in the state could arguably said to have a minimal effect on the state's ability to meet its AB 32 goals in general. And of course that's exactly what every lead agency will claim.

I also think it would have been prudent of OPR to state that quantification of a project's GHG contribution, as opposed to a "qualitative" description of it, is the preferred method whenever possible. Draft section 15064.4(b) gives the agencies way too much wiggle room. It's true, as the OPR spokesperson said to you, that quantification is sometimes difficult, and CEQA generally gives lead agencies a lot of latitude in how they approach the environmental analysis. But in this case, we're talking about a very specific kind of impact that lends itself to quantification. We're not talking about a visual impact or some other fuzzy type of environmental impact.

Estimating project-related air pollution is hardly a new scientific endeavor. There are models that are quite effective in quantifying the emissions contributions of even complex projects like long-term land use plans. A knowledgable transportation modeler assures me that CARB has computer models, available to any lead agency, that can help estimate project GHG emissions related to increases in traffic. There is also ample available sector-specific data, thanks to the state's GHG inventory, that could be used by modelers. The notion that agencies might be forced to rely on "qualitative" methods of estimating project impacts just doesn't hold water, given the state of computer modeling technology and the ocean of data available to planners.

By passing legislation like AB 32 and SB 97, the Legislature and the Governor put California on the leading edge of the struggle to come to terms with climate change in the United States. But ultimately, the implementation of the lofty goals of these statutes falls to state agencies like OPR and CARB. The success or failure of California's GHG regulation efforts depends on the political courage of the staff and political appointees who will work out the details of how the State will get a grip on its GHG problem. The GHG-related CEQA Guidlines proposed by OPR are not an indication that the agency has the courage to realize the State's lofty ambitions.