Adequacy of Greenhouse Gas Mitigation Considered for the First Time by a California Appellate Court

Communities for a Better Environment v. City of Richmond

A new California appellate decision is the first to consider, and to reject, the adequacy of greenhouse gas mitigation measures under CEQA. The First Appellate District's April 2010 ruling in Communities for a Better Environment v. City of Richmond also marks the first appellate court decision in the wake of recent CEQA guidelines which expressly require the consideration and mitigation of greenhouse gases.

The case arose from proposed upgrades to Chevron's Richmond refinery which would allow Chevron to process a wider variety of crude oils into fuel meeting state emissions standards. The extensive facility modifications included the potential to increase Chevron's carbon dioxide emissions by 898,000 metric tons per year. The City of Richmond's environmental impact report initially declined to state whether this increase was "significant," concluding that such a determination would be speculative. This position met with public resistance, however, and the EIR was revised to add (1) findings that the increase was significant, and (2) mitigation measures intended to realize "no net increase" in greenhouse gas emissions. The EIR pursued this objective by requiring Chevron to submit, within one year of project approval, a plan for fully offsetting the projected emissions increase. The plan included Chevron's commitment to fund an independent expert to identify potential on and off-site offsets, and listed several mitigation options, but did not commit the City to selecting from that list.

The appellate court held that the mitigation plan violated CEQA's prohibition against deferring, until after project approval, the formulation of mitigation measures. The court acknowledged that prior CEQA cases permitted lead agencies to defer the selection of mitigation measures, provided that agencies adopt specific performance criteria at project approval to ensure that later-selected measures are effective. The court concluded that the EIR failed to meet this standard because no effort was made to calculate whether the listed mitigation measures could effectively achieve a "no net increase" in emissions, because the measures were poorly defined and nonexclusive, and because the mitigation plan lacked any performance criteria. These shortcomings, in the court's view, reduced the post-approval determination of mitigation measures into a "bilateral negotiation" that fell short of CEQA's requirements.

Communities for a Better Environment v. City of Richmond provides needed guidance to CEQA lead agencies, which have been challenged in recent years to address the demands of a rapidly-evolving regulatory environment. The decision, coupled with recent CEQA amendments requiring the evaluation of greenhouse gases, clarifies that lead agencies must quantitatively identify and mitigate significant greenhouse gas impacts with the same rigor applied to other types of impacts.

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