On October 19, 2011, the California Supreme Court denied the
petition for review and requests for depublication of the Court of
Appeal, Fourth District's decision in Citizens for
Responsible Equitable Environmental Development v. City of Chula
Vista (2011) 197 Cal.App.4th 327 (CREED). CREED captured great attention because of the only four
published cases that address climate change, it is the first one to
address the pivotal issue of a lead agency's analysis of
significance thresholds for greenhouse gas emissions under the
California Environmental Quality Act (CEQA). CREED, along with
several notable environmental advocacy groups and the Attorney
General of the State of California, sought review as well as
depublication to overturn the Court of Appeal's sanctioning of
a lead agency's use of the California Global Warming Solutions
Act of 2006 (AB 32) as the significance threshold to assess
greenhouse gas emissions and climate change impacts under CEQA. The
critical take-away of the CREED decision is that the lead
agency has the discretion to set a significance threshold, and it
is proper to use AB 32 and the "business as usual"
methodology for assessing the significance of impacts from
greenhouse gas emissions. In 2009, the City of Chula Vista (the City) adopted a mitigated
negative declaration to approve the remodel and expansion of an
operating retail store that would demolish a 1970s-era building and
build a modern, energy-efficient building. CREED filed a petition
for writ of mandate, claiming that the City should have prepared an
environmental impact report. CREED contended that the project may
have a significant environmental impact on greenhouse gas
emissions, air quality on sensitive receptors, particulate matter
and ozone, and hazardous materials. The Court of Appeal remanded
the hazardous materials issue to the trial court with instructions.
Applying the fair argument standard to the other issues CREED
raised, the court found no fair argument existed that the project
may have significant environmental impacts. In the most notable holding of the decision, the court found
that the City properly relied on AB 32 as the threshold of
significance for greenhouse gas emissions. The court rejected
CREED's contentions that the City could not rely on AB 32
because the project's emissions exceeded three other
"well-recognized" potential thresholds of
significance. The court cited the amendments to the CEQA Guidelines
promulgated in March 2010, finding that lead agencies retain the
discretion to determine the significance of greenhouse gas
emissions and should "make a good-faith effort, based to the
extent possible on scientific and factual data, to describe,
calculate or estimate the amount of greenhouse gas emissions
resulting from a project." 14 Cal. Code of Regs. §
15064.4(a). The court stated that when assessing the significance
of impacts from greenhouse gas emission on the environment, the
lead agency should consider the following: Thus, the court concluded, "lead agencies are allowed to
decide what threshold of significance it will apply to a
project." The court then upheld the City's use of compliance with AB
32 as the significance threshold. The City used AB 32's
reduction goals to determine whether the project would reduce
"business as usual" emissions – emissions
assuming no reduction from measures required by AB 32 –
by the percentage required to be consistent with AB 32's
statewide emission goals. CREED had argued various other thresholds
were more stringent and therefore should have been the relevant
threshold. The court upheld the City's decision to use an AB 32
percentage reduction based on the "business as usual"
methodology and found that CREED's arguments regarding
potential alternative thresholds did not constitute a fair
argument. Even though climate change and greenhouse gas emissions have
been a hot topic in California for decades, it is only in recent
years that public and private entities have struggled with
analyzing and quantifying a proposed project's cumulative
impacts to greenhouse gas emissions pursuant to CEQA. Not only does
the CREED decision confirm that lead agencies have the
discretion to determine the appropriate significance threshold for
greenhouse gas emissions, but it also supports the use of the AB 32
"business as usual" methodology for assessing the
significance of impacts from greenhouse gas emissions. The
California Supreme Court's denial of review finally provides
lead agencies guidance for their review of greenhouse gas emissions
under CEQA. The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Supreme Court Denies Review and Depublication of Case
Establishing Significance Thresholds for Greenhouse Gas Emissions
Under CEQA
History of the Case
Court Determines That the City Properly Relied on AB 32 as a
Significance Threshold for Greenhouse Gas Emissions
Significance of CREED