Court Offers Guidance on Using AB 32 Targets as Threshold of Significance

Oroville v. City of Oroville

(2013) __ Cal.Rptr.3d __

A California Appellate Court has confirmed that a lead agency may adopt Assembly Bill 32’s emissions reduction targets as the threshold of significance standard to determine whether a Project’s emission constitute a significant environmental impact. This decision is noteworthy because it provides an example of an improper application of AB 32 as a threshold of significance. The court offers guidance that an appropriate application of this threshold of significance must conform to the calculations and estimates, or a reasonable equivalent thereof, done by the lead agency in Citizens for Responsible Equitable Environmental Development v. City of Chula Vista.

The case arose from the City of Oroville’s approval of an EIR for a project to replace an existing Walmart with a Walmart approximately twice its size. The city adopted the following standard as its threshold of significance for GHG emissions: “Whether the Project would significantly hinder or delay California’s ability to meet the reduction targets contained in [AB 32].”

AB 32 mandates that by 2020, the statewide level of GHG emissions be reduced to the level of GHG emissions present in 1990. AB 32’s scoping plan for achieving that reduction calls for reducing business-as-usual emissions by 30% from projected 2020 levels, or 10% percent 2010 levels. In determining whether the Project’s GHG emissions would have a significant impact on the environment, the EIR noted that the Project’s operational emissions would account for only 0.003 % of the state’s total 2004 GHG emissions. The Project thus adopted certain mitigation measures to minimize that impact. The EIR concluded that the Project would not significantly hinder or delay the state’s ability to meet the GHG emission reduction targets contained in AB 32 because the Project’s contributions to the state’s overall GHG emissions was less than significant.

On appeal, the Court held that in this case the EIR improperly applied AB 32 as a threshold of significance and improperly concluded that the Project’s impacts were less than significant. The Court stated that an appropriate application of the threshold of significance would approximate that done in Citizens for Responsible Equitable Environmental Development v. City of Chula Vista (2011) 197 Cal.App.4th 327 [“CREED”].

In CREED, the GHG emissions analysis compared the levels of emissions for business as usual versus the level of emissions from the proposed project. Although the proposed project would result in GHG emissions above the business as usual level, the project’s implementation of certain energy saving measures would actually reduce GHG emissions below business and usual standards, reducing emissions by 29% from 2020 estimates, and more than 10% from current emissions.

Here, although the EIR here also used AB 32 as its threshold of significance criteria, the Court found that the lead agency misapplied the standard in two related ways: (1) by applying meaningless numbers to determine the significance of the Project’s impact; and (2) by failing to determine the preexisting store’s GHG emissions.

The Court first held that Project’s comparison of projected Project GHG emissions against the state’s total emissions was meaningless to a true determination of the Project’s impacts. Rather, the Court held that the relevant question a lead agency must consider is “whether the Project’s GHG emissions should be considered significant in light of the threshold-of-significance standard of Assembly Bill 32, which seeks to cut about 30 percent from business-as-usual emission levels, or about 10 percent from 2010 levels.” The Court then held that the lead agency failed to determine the existing levels of GHG emissions, without which, determining whether AB 32 reduction levels were being met by the Project was futile. Furthermore, the Court noted that the EIR failed to analyze any effect of the EIR’s mitigation measures on GHG emissions, as was done in CREED.

To link to a downloadable version of this article, please click here.

© 2011-2013 Copyright ~ Harrison, Temblador, Hungerford & Guernsey LLP. All rights reserved.

The materials and information in this article have been prepared by Harrison, Temblador, Hungerford & Guernsey LLP for informational purposes only and do not constitute legal advice.

Categories: Articles