Tuesday, March 29, 2011

Climate Action Plans As CEQA Mitigation – Attorney General Comments

Press Release available at AG’sWebsite
Attorney General’s Comment Letter available at AG’sWebsite(pdf)

On March 17, 2011, Attorney General Kamala Harris issued comments that climate action plans could be appropriate mitigation for a project’s greenhouse gas emission impacts under CEQA -- provided that sufficient details and measures are included. The comments were provided in a letter from the AG’s office regarding Los Angeles County’s Santa Clarita Valley Area Plan’s EIR, which also interestingly shows that Harris’s office is likely to continue its predecessor’s practice of commenting on climate change impacts during the CEQA process.

The letter noted that to be adequate under CEQA, the mitigation must contain binding emission reduction targets and other performance criteria. These comments follow on the heels of last year’s CEQA Guideline greenhouse gas amendments -- which provide criteria and encouragement for developing climate action plans -- and the recent development of GHG thresholds by regional air quality management districts. As future climate action plans are developed, courts will likely additionally refine the requirements of such plans.

Complete and Adequate EIR Needed for Certification

Landvalue 77, LLC v. Board of Trustees of the California State University (filed Feb. 23, 2011; cert. for publ. Mar. 16, 2011) No. F058451, available at CourtWebsite

A recent Court of Appeals decision highlights the potentially harsh consequences of producing an incomplete EIR. In the case, an EIR for a mixed-use development project had not adequately analyzed potential impacts related to air quality, traffic and parking, and water supply. To remedy this error, the court required the approving agency to decertify the entire EIR and withdraw its approval of the project.

The court held that CEQA provides for EIR certification when the EIR is complete, and that partial certification is not compatible with this concept because an EIR is either complete or it is not. Thus, even though an EIR may only be inadequate in some areas of its analysis, courts must set aside the entirety of the EIR certification and project approval. Although some prior court decisions have not required entire decertification of partially inadequate EIRs, this decision highlights the possibility that agency review of the full EIR and approval may be required by a court – even where only portions of the EIR are found inadequate.