Communities for a Better Environment v. City of Richmond, No. A125618, (Apr. 26, 2010) available at CourtWebsite.
In the first published decision to address greenhouse gas (GHG) emissions under CEQA, the Court of Appeal for the First Appellate District invalidated an environmental impact report (EIR) that deferred the formulation of mitigation for GHG emissions. Though the decision applied existing CEQA principles regarding deferred mitigation, the decision, as well as recent amendments to the State CEQA Guidelines, demonstrates a need for well-developed factual evidence to support a lead agency’s conclusion regarding a project’s climate change impacts.
In Communities for a Better Environment v. City of Richmond (April 26, 2010), the city certified an EIR for modifications to an existing refinery, which concluded the project’s GHG emissions would have a potentially significant effect on the environment. Accordingly, the EIR included mitigation measures that the city contended would result in no net increase in GHG emissions, including the development of a GHG mitigation plan within one year of project approval; an inventory of the project’s GHG emissions; and identification of potential emissions reduction opportunities. Following project approval, the EIR was challenged. The trial court struck down the EIR and an appeal was filed. Ultimately, the Appellate Court agreed with the trial court that the city violated CEQA by deferring the formulation of mitigation measures for GHG emissions.
The Appellate Court clarified that an EIR may only defer formulation of mitigation measures if the lead agency (1) first conducts a full analysis of the significance of the environmental impact, (2) proposes potential mitigation measures early in the planning process, and (3) articulates specific performance criteria to ensure that adequate mitigation is eventually implemented. The court also criticized the EIR’s failure to calculate the actual reduction in emissions that would likely result from each mitigation measure and questioned whether the city’s no net increase in GHG emissions could be achieved by the “handful of cursorily described mitigation measures for future consideration.”
Notably, although not addressed in the court's decision, the recently finalized State CEQA Guidelines addressing GHG emissions state that lead agencies must consider “feasible means, supported by substantial evidence and subject to monitoring or reporting, of mitigating the significant effects of GHG emissions.” To be “feasible” a mitigation measure must be capable of being accomplished in a successful manner within a reasonable period of time.
In sum, this case confirms that, while future mitigation plans for GHG emissions (or other impacts) are not prohibited by CEQA, the ideal time to analyze impacts and to formulate mitigation measures is during the environmental review process before project approval. If practical considerations do not allow for the formulation of mitigation measures prior to project approval, then the agency should, at a minimum, satisfy the three requirements set forth above, including establishing specific performance criteria for such measures.
