A New Draft OPR Advisory for the Analysis of GHG Under CEQA

Environmental/Land Use Alert (January 2019)

In late December 2018, shortly following the Office of Administrative Law’s approval of comprehensive amendments to the State CEQA Guidelines, the Governor’s Office of Planning & Research (OPR) issued a discussion draft of its “CEQA and Climate Change Advisory” (draft Advisory). Release of this draft Advisory marks OPR’s first effort to update the greenhouse gas (GHG)-related Technical Advisory it issued more than 10 years ago. OPR has requested input on the draft Advisory by March 15, 2019.             

The draft Advisory begins by highlighting various legislative mandates and state policies that set the backdrop for GHG emissions analysis under CEQA, particularly targets for reductions in overall statewide emissions and the transportation & energy sectors. (Draft Advisory, pp. 3-4.) After identifying the parameters of State CEQA Guidelines section 15064.4, OPR notes that the State CEQA Guidelines “generally address [GHG] emissions as a cumulative impact due to the global nature of climate change” (id., pp. 4-7), serving to reaffirm the long-standing recognition that any one individual project is unlikely to significantly impact global climate change if evaluated in a vacuum.  

The draft Advisory covers much ground, addressing issues of methodology (pp. 8-10), thresholds (pp. 11-14), the relevant timeframe of analysis (p. 15), strategies for the mitigation of impacts (pp. 15-17), and opportunities for CEQA streamlining (pp. 17). In addressing mitigation, OPR notes that lead agencies “may want to consider the loading order” of mitigation, potentially focusing first on on-site measures before pivoting to off-site measures. (Id., p. 16.) In covering these topics, OPR does not venture into unchartered territory; rather, the draft Advisory consolidates previously articulated policy and law into a centralized document.                     

When describing potential approaches to GHG emissions analysis, OPR recommends that “analysis must keep apace with scientific knowledge and regulatory schemes” (Draft Advisory, p. 7), an objective complicated by the ever-changing backdrop for this environmental issue and the absence of judicially validated industry standards. For example, the “business as usual” and “service population” methodologies previously developed by the consulting community have been subject to judicial scrutiny for their failure to sufficiently correlate statewide targets to localized applications. Indeed, when speaking to the “business as usual” analytic, even OPR acknowledges that “correlating the project-level percentage reduction with the statewide goals may be difficult to achieve in practice and thus this particular threshold may not be readily implemented.” (Id., p. 13.)             

The draft Advisory includes two appendices, which arguably are the most notable aspects of its release. The first, Appendix A, contains pointers on how to estimate GHG emissions attributable to transportation. The appendix appears to be an effort to align GHG emissions analysis with aspects of the vehicle miles traveled (VMT) analysis stemming from Senate Bill 743.[1] (Draft Advisory, pp. 19-20.) The second, Appendix B, addresses the potential streamlining of GHG emissions analysis for transportation-efficient projects and projects that reduce VMT.   The appendix notably provides that “a land use development project that produces low [VMT], achieves applicable building energy efficiency standards, uses no natural gas or other fossil fuels, and includes Energy Star appliances where available, may be able to demonstrate a less-than-significant [GHG] impact associated with project operation.” (Id., p. 21.)                

In the background of the draft Advisory is a deliberately crafted caveat. More specifically, OPR is careful to recognize the discretion afforded to lead agencies under CEQA: “This document should not be construed as legal advice. OPR is not enforcing or attempting to enforce any part of the recommendations contained in this draft document. … Once finalized, the purpose of this document will be to provide advice and recommendations, which public agencies and other entities may use at their discretion.” (Draft Advisory, p. 2.) Even though the express purpose of OPR is only to provide advice and recommendations, this Advisory – if finalized – likely will become a relevant touchstone for lead agencies and CEQA practitioners on the subject of GHG emissions analysis.    

[This legal alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert.  Legal counsel should be sought for answers to specific legal questions.]

[1]   At the same time it released this draft Advisory, OPR also issued an updated version of its “Technical Advisory on Evaluating Transportation Impacts in CEQA.